[Senate Prints 113-30]
[From the U.S. Government Publishing Office]
113th Congress } { S. Prt.
COMMITTEE PRINT
2d Session } { 113-30
_______________________________________________________________________
THE EVOLVING CONGRESS
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COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
DECEMBER 2014
PREPARED BY THE
Congressional Research Service
Library of Congress
113th Congress } { S. Prt.
COMMITTEE PRINT
2d Session } { 113-30
_______________________________________________________________________
THE EVOLVING CONGRESS
__________
COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
DECEMBER 2014
PREPARED BY THE
Congressional Research Service
Library of Congress
______
U.S. GOVERNMENT PRINTING OFFICE
89-394 PDF WASHINGTON : 2014
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LETTER OF SUBMITTAL
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Congressional Research Service,
The Library of Congress,
Washington, DC, November 12, 2014.
Hon. Charles E. Schumer,
Chairman, Committee on Rules and Administration, U.S. Senate
Dear Mr. Chairman: I am pleased to submit the study
entitled ``The Evolving Congress,'' which was prepared by the
Congressional Research Service.
This compendium of 22 reports was written by staff of the
Government and Finance Division during the CRS centennial year.
It is a fitting contribution by the Service whose mission is
not only to analyze the domestic and international issues that
impact the legislative agenda but also to advise on the future
organization and operations of Congress and the institution's
policymaking process. The goal of this project is to inform the
legislative debate moving forward by examining how and why
Congress evolved over the previous decades to where it is
today.
In addition to the analysts and information professionals
who prepared the various pieces that make up ``The Evolving
Congress,'' the project was coordinated and reviewed by
Government and Finance Division staff, including Pamela
Jackson, Walter J. Oleszek, John Haskell, Michael L. Koempel,
Matthew E. Glassman, James Saturno, and Robert Jay Dilger. I
trust the committee will find the study thought provoking and
valuable as you consider issues of congressional operations. It
should also serve the wider audience of congressional scholars
and all those interested in the history and processes of the
First Branch.
Sincerely,
Dr. Mary Mazanec,
Director.
PREFACE
----------
For 100 years, the Congressional Research Service has been
charged with providing nonpartisan and authoritative research
and analysis to inform the legislative debate in Congress. This
has involved a wide range of services, such as written reports
on issues and the legislative process, consultations with
Members and their staff, seminars on policy and procedural
matters, and congressional testimony. In recent years, CRS has
expanded its service by providing a wider range of electronic
products and enhancing its Web site to facilitate ease of
Member and staff use.
For this congressional committee print, the Government and
Finance Division at CRS took a step back from its intensive
day-to-day service to Congress to analyze important trends in
the evolution of the institution--its organization and
policymaking process--over the last many decades. Changes in
the political landscape, technology, and representational norms
have required Congress to evolve as the Nation's most
democratic national institution of governance. The essays in
this print demonstrate that Congress has been a flexible
institution that has changed markedly in recent years in
response to the social and political environment.
In assessing Congress, it is also important to be mindful
of what has not changed. For one thing, the institution has
always been subject to criticism, as described by Walter
Oleszek in one of the two overview pieces in Part I of this
committee print, ``The Evolving Congress: Overview and Analysis
of the Modern Era.'' Often the criticism centers around so-
called ``gridlock'' on major issues. But it bears mentioning
that the constitutional design, another constant, militates
against speed and efficiency and in favor of deliberation.
That Congress is not moving fast enough on certain issues
to satisfy certain observers overlooks the fact that,
historically, major legislation has almost always taken time to
enact. Civil rights and Medicare both required debate and
deliberation stretching over multiple Congresses before
enactment. Today, the big policy debates are every bit as
complex as those were, and in some respects may be more so
given rapidly evolving technologies and the international
dimension of so many issues. Cybersecurity, environment
challenges, fiscal pressures from entitlements, and immigration
reform, to name a few, present daunting challenges to lawmakers
in the coming years.
Partisanship is also a constant. Indeed the current level
of partisanship that is often decried--characterized by the
relative ideological homogeneity within the two parties along
with the ideological distance between them--is by no means
unprecedented. It is also true that contemporary polarization
is a reflection of a principled struggle over the proper role
of the Federal Government. A serious debate is taking place in
Congress that reflects disagreement and unease throughout the
country, and there is nothing ``wrong'' or ``broken'' about
that debate.
However, this era of strong partisanship is likely no more
permanent than others in the past. New issues and new movements
inevitably disrupt the status quo in the country, the Congress,
and the party system. Witness the impact of the rise of the
Progressives early in the 20th century, changes in the
composition of both parties as a result of the civil rights
movement, and controversial Supreme Court decisions in the
1960s, 1970s, and beyond, as well as the effect of the tax
revolt in the late 1970s.
After Walter Oleszek's piece, Michael Koempel looks broadly
at how the job of a Member has evolved in the last half
century. He addresses the dramatic changes in the information
environment, resulting in increased demands from constituents;
the social changes that have profoundly affected the context of
representation; and the way the campaign environment--increased
costs and fundraising pressures--has evolved. These changes,
together with the evolution of the party coalitions and the
environment of partisanship described by Oleszek, have led to a
different context for the consideration of legislation. Koempel
describes how the roles of party leaders and committees in both
Chambers have evolved; even the way legislation is handled on
the floors of the two Chambers is different in important ways
now than it was 30, 40, or 50 years ago. The message: the life
of Members, with respect to both their legislative and
representational roles, has changed in irrevocable ways since
the 1960s and 1970s.
Part II of the print, ``The Members of Congress,'' building
on Oleszek's and Koempel's contributions, includes several
reports describing specific aspects of the life of a Member of
Congress. Matthew Glassman considers how social media may
affect Members in the performance of their representative role.
Mark Oleszek takes a different tack in assessing the life of a
Member, by investigating the nature of relationships in the
Senate over the last 30 years. He finds that collaborative
relationships are central to lawmaking but that opportunities
to work together have decreased in recent years.
Jennifer Williams, Ida Brudnick, and Jennifer Manning
examine the changing demographics of the congressional
membership, a membership that is much more diverse than
previously, but which still is not representative of the Nation
in significant ways. Brudnick separately details how
congressional staffing has evolved over time, with implications
for how Members do their work.
Kevin Coleman and Sam Garrett write about the changing
environment in congressional election campaigns in recent
decades. They note in detail the differences in the campaign
context 50 years ago or so and now, but ultimately conclude
that the fundamentals of campaigns are the same--candidates
still need to identify, communicate with, and motivate
potential voters. New technologies and other innovations in
electioneering are merely means to the same end.
Jessica Gerrity analyzes the public's view of Congress over
the last 40 years. She concludes that Congress' consistently
low popularity is, in part, due to factors beyond its control,
but at the same time may have systemic consequences. At the end
of this group of reports, Jacob Straus wades into the question
of measuring the productivity of one Congress against another.
His contribution is that glib representations of a given
Congress' productivity, or lack thereof, not only ignore
methodological complexities, but also generally fail to
consider that any such judgments are inherently value-laden.
Part III, ``The Institutional Congress,'' looks in detail
at developments in the legislative process. The Constitution is
nearly silent on how Congress needs to go about its legislative
and oversight responsibilities. Like the life of a Member, the
legislative process itself has evolved in significant ways.
Even what is thought of as ``regular order'' is far from static
when viewed through a historical lens.
Megan Lynch and Mark Oleszek consider developments in the
use of special rules in the House. Authorizing legislation is,
of course, the legal foundation for the actions of executive
branch agencies. Jessica Tollestrup details notable changes in
the structure, content, and frequency of authorizations in the
last few decades. In recent years in particular, Congress has
attempted to embed transparency in agency operations, as
described by Clinton Brass and Wendy Ginsberg. This topic is
likely an area of continued reexamination for Congress going
forward.
An important question that faces Congress on a regular
basis is how to organize for legislative business. The action
in this area revolves around the relative roles of party
leadership and committees in the development and processing of
legislation. Judy Schneider delves into the implications for
Members and the policymaking process of the increased control
that party leaders exert over some aspects of the process.
Part IV, ``Policymaking Case Studies,'' aims to shed light
on the various ways policy is made in the current Congress, and
how that has evolved. In different ways, these case studies of
congressional policymaking show that the institution is fully
capable in different ways of addressing the competing demands
of a diverse nation.
For example, Edward Murphy and Eric Weiss describe
Congress' response to financial crises. In 2008, for example,
we see that Congress' hands are neither tied nor forced by
policies and institutions put in place by previous Congresses;
in fact, Congress proves able to pass far-reaching legislation
even in an era of supposed legislative gridlock. Similarly,
post-9/11, Congress acted forcefully in various ways, including
by creating the Department of Homeland Security. William
Painter describes the creation of the new department and what,
in retrospect, that experience tells us.
In another report, Colleen Shogan studies the passage of
the defense authorization bill. How does this massive
undertaking happen on an annual basis when many other
reauthorization efforts stall out? Robert Dilger and Sean Lowry
consider the case of small business policy, where creative
approaches to the legislative process have at times yielded
public law. Jennifer Williams describes a particular case
involving congressional actions to direct Census Bureau policy
through appropriations legislation. This reflects a trend of
congressional direction coming through appropriations bills
instead of authorizations. Other reports cover Congress'
evolving role in responding to disasters (Bruce Lindsay and
Francis McCarthy), and the evolution of block grants as a
policy instrument (Eugene Boyd and Natalie Keegan).
Two reports look at tax policy--Molly Sherlock discusses
rule-driven policy in the case of so-called ``tax extenders,''
and Jane Gravelle reminds readers that comprehensive tax reform
is not something that happens easily. In fact, her historical
analysis reveals that there are identifiable preconditions for
tax reform that, by and large, are not currently in place. The
idea commonly put forward that Congress is ``overdue'' to enact
comprehensive reform ignores not just history, but also the
nature of the particular tax issues facing lawmakers today.
As noted earlier, Congress faces major challenges going
forward in a complex and interdependent world. Its decisions,
given its central role in the policymaking process, will
profoundly affect the future of the Nation. With this committee
print, CRS is fulfilling its traditional role of informing
Congress on the domestic and international challenges that lie
ahead, as well as assessing the future character of the
institution and its policymaking process. The CRS goal is to
enrich this debate by examining how and why Congress evolved to
where it is today.
This committee print could not have happened without the
efforts behind the scenes of Pamela Jackson, Walter J. Oleszek,
Michael L. Koempel, Matthew E. Glassman, James Saturno, and
Robert Jay Dilger, as well as two former CRS staffers, Jessica
C. Gerrity and Kevin Kosar. Karen Wirt and Tamera Wells-Lee,
along with Suzanne Kayne of the Government Printing Office,
worked long hours to enable the print to come together. In
addition, Amber Wilhelm, assisted by Jamie Hutchinson, brought
order to the production of graphics, and numerous editors
polished the final products. Of course, as always, the real
work of fulfilling the CRS mission to inform Congress was
performed by the analysts and specialists who wrote the
products whose contributions are described above.
John Haskell,
Assistant Director, Government and Finance Division.
C O N T E N T S
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Page
Letter of Submittal.............................................. iii
Preface, by John Haskell......................................... v
I. Overview
The Evolving Congress: Overview and Analysis of the Modern
Era, by Walter J. Oleszek.................................. 3
Being a Member of Congress: Some Notable Changes During the
Last Half Century, by Michael L. Koempel................... 61
II. The Members of Congress
Tweet Your Congressman: The Rise of Electronic Communications
in Congress, by Matthew E. Glassman........................ 95
Collaborative Relationships and Lawmaking in the U.S. Senate:
A Perspective Drawn from Firsthand Accounts, by Mark J.
Oleszek.................................................... 107
The 113th Congress and the U.S. Population: Discussion and
Analysis of Selected Characteristics, by Jennifer D.
Williams, Ida A. Brudnick, and Jennifer E. Manning......... 129
Congressional Staffing: The Continuity of Change and Reform,
by Ida A. Brudnick......................................... 145
The Unchanging Nature of Congressional Elections, by Kevin J.
Coleman and R. Sam Garrett................................. 163
Understanding Congressional Approval: Public Opinion from
1974 to 2014, by Jessica C. Gerrity........................ 189
Comparing Modern Congresses: Can Productivity Be Measured?,
by Jacob R. Straus......................................... 217
III. The Institutional Congress
Recent Innovations in Special Rules in the House of
Representatives, by Megan S. Lynch and Mark J. Oleszek..... 245
Changes in the Purposes and Frequency of Authorizations of
Appropriations, by Jessica Tollestrup...................... 259
Congress Evolving in the Face of Complexity: Legislative
Efforts to Embed Transparency, Participation, and
Representation in Agency Operations, by Clinton T. Brass
and Wendy Ginsberg......................................... 281
Committee Assignments and Party Leadership: An Analysis of
Developments in the Modern Congress, by Judy Schneider..... 299
IV. Policymaking Case Studies
Congress and Financial Crises, by Edward V. Murphy and N.
Eric Weiss................................................. 325
Shocks to the System: Congress and the Establishment of the
Department of Homeland Security, by William L. Painter..... 353
Like Clockwork: Senate Consideration of the National Defense
Authorization Act, by Colleen J. Shogan.................... 369
The SBA and Small Business Policymaking in Congress, by
Robert Jay Dilger and Sean Lowry........................... 383
Use of the Appropriations Process to Influence Census Bureau
Policy: The Case of Adjustment, by Jennifer D. Williams.... 399
The Evolution of U.S. Disaster Relief Policy, by Bruce R.
Lindsay and Francis X. McCarthy............................ 413
Congress' Role in the Evolution of Federal Block Grants as a
Policy Instrument: From Community Development to Homeland
Security, by Eugene Boyd and Natalie Keegan................ 425
IV. Policymaking Case Studies--Continued
The Tax Extenders: How Congressional Rules and Outside
Interests Shape Policy, by Molly F. Sherlock............... 441
The Dynamics of Congressional Policymaking: Tax Reform, by
Jane G. Gravelle........................................... 457
=======================================================================
I. OVERVIEW
=======================================================================
The Evolving Congress: Overview and Analysis of the Modern Era
Walter J. Oleszek
Senior Specialist in American National Government
----------
Congress is an institution that constantly undergoes
change. Sometimes the changes are big and sometimes
they are small. The changes are driven by a variety of
external and internal factors, many of which are
highlighted in this report. The report's basic purpose
is to analyze the relationship between two main centers
of power in the House and Senate: committee power and
party power. Sometimes one center of power appears to
dominate in shaping policies; at other times it is the
other, or both might be in some degree of equilibrium.
Specifically, the report focuses on the configuration
of internal power in the House: from the party
government era (1890-1910), to the committee government
period (1920-the early 1970s), to the subcommittee
government stage (1970s-1980s), and the
recentralization of authority in the party leadership
(1990s). Comparable eras are examined for the Senate,
with significant attention given to the 1950s Senate,
the ``individualist'' Senate (1960s-1990s), to the
polarized Senate (1990s- ) of today. The time
periods for the different House and Senate eras are
approximations. The report closes with an assessment of
the tension between gridlock and governance in the
contemporary Congress.
To celebrate the centenary of the Congressional Research
Service (1914-2014), analysts in the Government and Finance
Division prepared a series of reports to highlight the evolving
character and role of the legislative branch. The Founders
expected Congress to be the ``first branch'' of government.
Consider that half the words in the U.S. Constitution define
the roles and responsibilities of the Nation's bicameral
national legislature. Congress was granted ``all legislative
powers'' as well as explicit authority (article I, section 8)
to make ``all Laws which shall be necessary and proper for
carrying into Execution'' all the powers enumerated in the
Constitution (the power to tax, spend, borrow, and to create
executive offices and inferior courts, for example). Congress
also has implied powers, such as the authority to investigate
and oversee the administration of laws. Provisions in the
Constitution and the 17th Amendment also provide for the
election of House and Senate Members.
In brief, Congress' pivotal role in the Nation's separation
of powers system, with its panoply of ``checks and balances''--
overlapping powers accorded the three branches, such as the
ability of the President to veto bills passed by Congress,
subject to an override by a two-thirds vote of each Chamber--is
rooted in the Constitution. In the view of a congressional
scholar:
The Constitution has successfully provided two features of
national political life that seem unassailable. The first is a
Congress that is institutionally robust and capable of
gathering information and seeking opinions independently of the
president [and initiating legislation in its own right]. The
second is that Congress is . . . linked directly to the people
through elections. The president is a stronger rival than he
once was, but he is not the only game in town. It is that
unbreakable electoral link that provides [Congress's]
continuing legitimacy, ensuring real political power.\1\
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\1\ Charles Stewart III, ``Congress and the Constitutional
System,'' in Paul Quirk and Sarah Binder, eds., The Legislative Branch
(New York: Oxford University Press, 2005), p. 30.
Despite Congress' prominent place in the Nation's
separation of powers system, public criticism of the
legislative branch has been common since its creation. Many
factors account for this recurrent pattern, such as people's
dislike of various features of the lawmaking process
(arguments, partisan conflicts, imperfect solutions, and so
on). As two scholars have noted, Congress is ``structured to
embody what we dislike about modern democratic government,
which is almost everything.'' \2\ Various lawmakers also
express disappointment in Congress' performance, while many
commentators regularly call our contemporary national
legislature broken, overly partisan, unproductive, or
dysfunctional. There are also Members who state that Congress
is functioning as the Framers intended despite the stalemates
(policy and procedural), delays, and conflicts that
understandably suffuse the lawmaking process.\3\
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\2\ John R. Hibbing and Elizabeth Theiss-Morse, Congress as Public
Enemy (Cambridge, United Kingdom: Cambridge University Press, 1995), p.
158. See also the related CRS centennial report in this volume,
Understanding Congressional Approval: Public Opinion from 1974 to 2014,
by Jessica C. Gerrity.
\3\ Senate Majority Leader Harry Reid, despite the many
controversies that occur in the Chamber, stated: ``Congress is not
broke. Congress works the way it should. Does that mean it is always a
very pleasant, happy place? Do I wish it weren't as difficult as it has
been in the last few months? I wish it was much better than that. That
is where we are . . . . Through all the years and conflicts we have
had, we have been able to come together and reach reasonable
conclusions. The great experiment that started in 1787 has been very
successful . . . .'' Congressional Record, v. 157, August 1, 2011, p.
S5156.
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In a country as diverse as the United States, with scores
of competing interests, it is not easy for elected
representatives to come together to enact legislation that
promotes, as noted in The Federalist (No. 57), ``the common
good of the society.'' What constitutes the ``common good'' is
not self-evident and is open to profound disagreement,
especially when the two parties--as in today's Congress--are
sharply divided by philosophical, ideological, geographical,
and political differences. One consequence: confrontation
rather than compromise creates considerable turbulence and
uncertainty in congressional policymaking.
That Congress has shortcomings goes without saying.
Lawmakers themselves are cognizant of institutional ailments
and regularly propose ways to improve the organization and
operation of the House or Senate, as the case might be. From
its earliest days, many Members have worked to improve and
strengthen Congress' fundamental responsibilities--lawmaking,
representation, and oversight--so Members might better address
and resolve the Nation's pressing problems. Although
frustrations, disputations, and conflicts typically accompany
consequential initiatives to revamp legislative structures and
operations, change and innovation are part of Congress' DNA.
These attributes enable Congress to remain a vital and
effective instrument of governance.
While Congress cannot resolve every national or
international problem, its record of achievement over 200 years
merits high praise--the Bill of Rights; the elevation of public
health as a national priority and the provision of resources to
treat many diseases; the creation of a system of land-grant
colleges and universities; the construction of an interstate
highway system; a strong military; and so on. If laws failed to
ameliorate problems or even make them worse, the Nation's open
system enables feedback from Members, attentive constituents,
outside groups, and others that can prompt corrective actions
by the legislative branch. Constituents often overlook or
simply do not appreciate or recognize the legislature's many
accomplishments and how these attainments affect their lives.
As a Congressman pointed out:
[A] group of constituents visiting my [district] office
told me that Congress was irrelevant. So I asked them a few
questions. How had they gotten to my office? On the interstate
highway, they said. Had any of them gone to the local
university? Yes, they said, admitting they'd got help from
federal student loans. Did any of them have grandparents on
Social Security and Medicare? Well sure, they replied, picking
up on where I was headed. Their lives had been profoundly
affected by Congress. They just hadn't focused on all the
connections before.\4\
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\4\ Lee Hamilton, ``What I Wish Political Scientists Would Teach
About Congress,'' PS: Political Science & Politics, vol. 33, December
2000, p. 758. Hamilton was a Member of the U.S. House of
Representatives for 34 years (1965-1999). Currently, he is the director
of the Center on Congress at Indiana University.
The focus and connection of the reports in this committee
print are to demonstrate that Congress plays a multiplicity of
crucial roles in the Nation's constitutional system; that it is
responsive to constructive criticism; that it can mediate
conflicts and differences in the polity; that it regularly
strives to strengthen its legislative, representative, and
oversight functions; that it can produce effective and
innovative policies; that it is a vital check on the
``Presidential branch'' of government; and that it is
responsive to the concerns and needs of constituents, American
society, and the world community.
Important to emphasize is that Congress has always been
subject to various criticisms, some warranted and some not.
Today, a major criticism is that Congress cannot address a
plethora of pressing national problems because it is often in a
state of policymaking paralysis. Two points about national
policymaking merit mention. First, consequential laws are the
product of the House, the Senate, and the President. No single
elective unit or person can make laws on their own. Second, as
James Madison stated in The Federalist (No. 52), Congress is
``a substitute for a meeting of the citizens in person.'' If
the people are divided on what they want done to resolve major
national problems, then their divisions will manifest
themselves in Congress. In the view of former Speaker Carl
Albert (1973-1977), major legislative accomplishments occur
``only because the American people had reached that point in
their history where they wanted them done.'' \5\
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\5\ Congressional Record, v. 112, May 23, 1966, p. 10637.
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This report analyzes the evolution of Congress: how and why
it constantly adapts to new circumstances, issues, and
problems. For example, the ``regular order'' of policymaking in
one era is often displaced in whole or in part by a new
``regular order,'' commonly prompted by an array of external
and internal developments. The report's principal focus, then,
is institutional change: how the House and Senate have evolved
as policymaking assemblies, especially with regard to the role
of parties and committees. Selected historical changes in the
membership makeup of Congress, such as the professionalization
of lawmakers' careers, are also included in the discussion.
The report is structured to examine several objectives.
First, it begins with a discussion of some of the external and
internal forces that commonly trigger major revisions to the
distribution of power in the House and Senate. These drivers of
change typically involve the combination of external stimuli
and internal advocates. Both act as catalysts to bring about
fundamental congressional change: for example, a new
equilibrium of power that replaces or modifies the previous
one. Second, because the election of new lawmakers is sometimes
a major factor in instigating congressional alterations, the
next section addresses selected changes in the membership and
career patterns of lawmakers.
Third, the report provides an overview of the evolution of
power in the House, and suggests why different institutional
patterns of policymaking periodically emerge in the Chamber.
Specifically, this part examines the evolution of the House
from an era of ``party government''--the speakerships of Thomas
Reed (1889-1891; 1895-1899) and Joseph Cannon (1903-1911)--to
``committee government'' (roughly 1920-1970) to ``subcommittee
government'' (the 1970s to the early 1980s). These governing
models reflect the central tendency of each era rather than a
time when party leaders, committee chairs, or subcommittee
chairs totally dominated Chamber proceedings. After all,
parties need committees to review and process legislation, and
committees need party leaders to schedule and structure
proceedings on the floor.
The fourth objective, encompassing two sections of the
report, is an examination of the reemergence of strong party
leadership, focusing on the speakerships of Newt Gingrich
(1995-1999), Dennis Hastert (1999-2007) and Nancy Pelosi (2007-
2011). The speakership of John Boehner (2011- ) is also
briefly noted.
Fifth, the report provides an overview of three Senate
eras: the 1950s Senate, the individualist Senate (1960s to
1980s), and the polarized Senate of today. (The time periods
specified for these eras, as for the House, are
approximations.) Sixth, several summary observations conclude
the report.
I. Drivers of Congressional Change
Congress and its membership are constantly changing and
adapting to various conditions, pressures, and forces. Every
election cycle, for instance, produces large or small changes
in the makeup of the House and Senate membership and in the
salience of various issues. Historical circumstances can also
provoke legislative change. Consider enactment of the
Legislative Reorganization Act of 1946, the first comprehensive
reform in Congress' history. Many leaders inside and outside
Congress expressed concern about the condition of the
legislative branch. During the Depression and New Deal period
of the 1930s, they had witnessed a dramatic increase in the
authority of the executive branch. Then, on the eve of World
War II, they watched the rapid fall of many European
parliamentary systems to Hitler's military onslaught.\6\
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\6\ As Representative (later Senator) A.S. Mike Monroney, the vice
chairman of the joint committee that drafted the 1946 LRA, pointed out,
``[I]n almost every country of the world, the parliamentary system has
failed. In countries where dictators have taken over, it has always
been because the parliamentary systems have proved their inability to
cope with the complex and difficult problems that face modern society.
That is the real significance of congressional reorganization. An
effective and efficient Congress is our first bulwark against
dictatorship and the leading institution we have today to protect our
liberties and democracy.'' See A.S. Mike Monroney, ``The Legislative
Reorganization Act of 1946: A First Appraisal,'' in A.S. Mike Monroney,
et al., eds., The Strengthening of American Political Institutions
(Ithaca, New York: Cornell University Press, 1949), p. 31.
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As a result, public interest in congressional
reorganization became widespread among lawmakers, in the press
and popular journals, and on the radio. Academics, led by the
Committee on Congress of the American Political Science
Association, prepared reports on ways to improve Congress. They
also mobilized scholarly and public support for congressional
reform. These conditions provided the incentive and motivation
for numerous Members in both parties and Chambers to come
together to strengthen their own branch of government.
External Forces
Many other external and internal developments can impel
institutional change. Three are noted for illustrative
purposes. First, new media technologies have altered how
lawmakers communicate with their constituents and with each
other. For example, the late Senator Edward Kennedy lamented
the decline of face-to-face interactions with colleagues as
lawmakers increasingly ``speak'' to each other 24/7 via various
social media.\7\ A House chair said he reached out to
constituents with a social media campaign, ``lending his voice
to an `explainer' video walking laymen through the ins and outs
of reauthorizing water infrastructure projects.'' \8\
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\7\ John Stanton, ``Kennedy Memoir Recalls Chummy Senate,'' Roll
Call, September 15, 2009, p. 26.
\8\ Emma Dumain and Nathan Hurst, ``House GOP Sees Water Bill as
Post-Earmark Success,'' Roll Call, May 19, 2014, p. 8.
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Second, global events constantly impact Congress' agenda
and activities. The agenda of the contemporary Congress, for
example, is replete with issues such as the humanitarian crisis
associated with the large number of child immigrants from
Central America fleeing violence and crossing the Nation's
southwestern border; civil wars in Iraq and Syria; an assertive
China; or Russian President Vladimir Putin's aggressive actions
against Ukraine.
Third, unlike the post-World War II era when there were
liberals and conservatives in both parties, today, as a current
Senator noted, ``most Democrats are far left; most Republicans
are to the right.'' \9\ Centrist lawmakers are a vanishing
breed on Capitol Hill. This development occurred over time, but
the political reality today is that Democratic and Republican
lawmakers have intense disagreements on a host of domestic and
international issues. These divergent perspectives reflect the
views of their respective electoral coalitions.
---------------------------------------------------------------------------
\9\ Kathy Kiely and Wendy Koch, ``Committee Shaped by Party Ties,''
USA Today, October 5, 1998, p. 2A.
---------------------------------------------------------------------------
The South, for instance, was once a solid Democratic
region. Today, the South--a region generally reputed for being
antitax, promilitary, strongly evangelical, and antilabor, for
example--is a GOP stronghold triggered by events such as the
civil rights movement, the rise of the religious right, changes
in societal attitudes and values, and demonstrations against
the Vietnam war. Conservative southern Democrats switched
parties to become conservative Republicans. The result: a
partisan regional realignment that has ``southernized'' the
Republican Party on Capitol Hill. The switch in party dominance
in the South also moved the Democratic Party in a more liberal
direction.
In brief, the two major parties differ racially (a large
percentage of Democrats are nonwhite, Republicans are
predominately white); culturally (for example, Democrats tend
to favor same-sex marriage, many Republicans do not); and
ideologically (Democrats favor an activist government,
Republicans prefer to shrink the role of the government).
Unsurprisingly, constituents in ``red'' and ``blue'' States
vote for lawmakers who strongly support their values and policy
preferences. The result of the sharp divide between the two
parties is often policy gridlock, triggered by the inability of
Democrats and Republicans to resolve their differences by
compromise. Add to this perplexity a constitutional separation
of powers system that ``was not designed to work under
conditions of intense partisan polarization.'' \10\
---------------------------------------------------------------------------
\10\ Alan I. Abramowitz, ``The Electoral Roots of America's
Dysfunctional Government,'' Presidential Studies Quarterly, vol. 43,
December 2013, p. 727.
---------------------------------------------------------------------------
Internal Forces
Institutional change is fostered by a number of internal
challenges and concerns. For example, aggressive Presidents can
provoke legislative change, especially if they take actions
perceived as undermining Congress' constitutional prerogatives.
When President Richard Nixon clashed with Congress over
spending priorities by impounding (refusing to spend) funds for
programs he disliked--even though he had signed them into law--
it prompted Congress to reclaim its budgetary prerogatives by
enacting a landmark overhaul of its budgetary system: the
Congressional Budget and Impoundment Control Act of 1974.
President Nixon's impoundments, wrote a scholar, were
``designed to rewrite national policy at the expense of
congressional power and intent.'' \11\
---------------------------------------------------------------------------
\11\ Allen Schick, Congress and Money (Washington, DC: Urban
Institute Press, 1980), p. 46.
---------------------------------------------------------------------------
House and Senate changes are also advanced by individual
lawmakers, ad hoc groups, and by each congressional party.
There is little doubt that strong-willed and change-oriented
individuals have always influenced public policy and played
major roles in promoting legislative change. Many people may
have forgotten that, over the decades, many reform-oriented
lawmakers promoted major revisions in how Congress operates in
making decisions. These lawmakers include Senator Robert La
Follette, Jr., and Representative Monroney (authors of the
Legislative Reorganization Act of 1946); Representatives
Richard Bolling (a champion of budget and committee reform in
1973-1974) and David Dreier (a leader in revamping House rules
when Republicans won control of that Chamber in 1994); and
Senators Adlai Stevenson, Jr. (chair of the Senate panel that
revamped committee jurisdictions in 1977) and Howard Baker, Jr.
(a strong advocate of televising Senate floor proceedings,
which occurred in 1986). The evolution of Congress is shaped in
large measure by the people elected to serve in the House and
Senate and their commitment to improving and strengthening the
legislative branch.
II. Membership Composition: Then and Now
The membership characteristics and party affiliations of
the people who served in the House and Senate in 1953 and 2013
are highlighted in Table 1. The table contrasts individual
attributes of the people who served in those years. Generally,
changes in the composition of the House and Senate occur
slowly; however, when the makeup does exhibit major change, it
suggests that larger economic, political, and social forces are
underway in the electorate--an increase in the minority
population and its access to and interest in civic
participation, for example. Broad societal developments may (1)
influence who seeks to serve in Congress, (2) shape the agenda
priorities of the House and Senate, and (3) reveal shifts in
the regional composition of the two parties. Three features of
Congress' composition--the number of lawyer-politicians, its
gender and ethnic diversity, and the professionalization (a
full-time occupation) of legislative careers--spotlight
important membership patterns and trends.\12\
---------------------------------------------------------------------------
\12\ See the related CRS centennial report in this volume, The
113th Congress and the U.S. Population: Discussion and Analysis of
Selected Characteristics, by Jennifer D. Williams, Ida A. Brudnick, and
Jennifer E. Manning.
---------------------------------------------------------------------------
The Legal Profession
Lawyers have usually dominated the membership of both
Chambers. As one account noted, ``From 1780 to 1930, two thirds
of senators and about half the House of Representatives were
lawyers.'' \13\ The actual proportion varies over time. For
example, in the 105th House (1997-1999), Members with business
backgrounds (181) outnumbered lawyers (172) ``for the first
time since Congressional Quarterly began keeping records of
Members' occupations in 1953.'' \14\ However, lawyers
outnumbered business people in the Senate, keeping Members with
law degrees as the number one occupation in the 105th Congress.
---------------------------------------------------------------------------
\13\ Mark C. Miller, ``Lawyers in Congress: What Difference Does It
Make?'' Congress & The Presidency, vol. 10, spring 1993, p. 2. Also see
Mark C. Miller, The High Priests of American Politics: The Role of
Lawyers in American Political Institutions (Knoxville, TN: University
of Tennessee Press, 1995).
\14\ Allan Freeman, ``Lawyers Take a Back Seat in the 105th
Congress,'' CQ Weekly, January 4, 1997, p. 27.
Table 1. Selected Characteristics of Congress, 1953 and 2013
------------------------------------------------------------------------
Category Year House Senate
------------------------------------------------------------------------
Ethnicity:
Hispanic/Latino Americans................. 1953 1 1
2013 31 4
African Americans......................... 1953 2 0
2013 40 1
American Indian/Native Americans.......... 1953 0 0
2013 2 0
Asian Pacific Americans................... 1953 0 0
2013 10 1
Gender:
Women..................................... 1953 11 1
2013 78 20
Occupations:
Attorneys................................. 1953 249 59
2013 156 55
Physicians................................ 1953 5 0
2013 16 2
Party Affiliation:
Democrats................................. 1953 213 47
2013 201 53
Republicans............................... 1953 221 48
2013 234 45
Independents.............................. 1953 1 1
2013 0 2
------------------------------------------------------------------------
Source: ``How Congress is Different These Days,'' U.S. News and World
Report, Jan. 30, 1978, p. 32. Current data compiled by Jennifer E.
Manning, Information Research Specialist, Knowledge Service Group,
CRS.
Constituents seem to believe that, more than other
occupations, lawyers have the requisite training to make laws,
such as indepth knowledge of the U.S. Constitution and
heightened capacity to understand the procedures and rules that
shape substantive decisions. Lawyers also have certain
political marketing advantages. An observation about lawyers
made by a House Member in 1897 still retains some currency
today. He wrote: ``If [a lawyer] is reasonably successful his
name is constantly in the newspapers published in his locality,
and he generally needs no introduction to the people of his
congressional district. When a vacancy occurs in the
representation he is likely to have friends everywhere who are
zealous in promoting his cause.'' \15\ Lawyers are also viewed
as skilled in advocacy, argumentation, and persuasion,
qualities viewed as essential to the lawmaking process.
---------------------------------------------------------------------------
\15\ Representative William H. Moody, ``Lawyers in Congress,'' The
Illustrated American, October 23, 1897, p. 523.
---------------------------------------------------------------------------
Despite the significant number of lawyers in Congress,
contemporary Congresses have witnessed a large number of
Members elected with an array of different occupational
experiences and professions. They are also not all career
politicians. There have been actors, athletes, and astronauts
who have served in Congress, not to mention physicians,
professors, teachers, military officers, or journalists.\16\
Compared to earlier eras, there is a broader cross section of
Americans that run and win seats in Congress.
---------------------------------------------------------------------------
\16\ David T. Canon, Actors, Athletes, and Astronauts (Chicago:
University of Chicago Press, 1990).
---------------------------------------------------------------------------
Diversity
White males have been overrepresented in the House and
Senate from its very beginning. By contrast, women have always
been underrepresented in the House and Senate. Remember that
only with the ratification of the 19th Amendment in 1920 did
women attain the right to vote. That amendment stated: ``The
right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on
account of sex.'' In 1917, GOP Representative Jeannette Rankin
of Montana, an activist in the women's suffrage movement,
became the first woman to be elected to Congress. Montana was
among several States, prior to the ratification of the 19th
Amendment, that had granted women the right to vote.
Today, there are a record number of women in the 113th
Congress (2013-2015), which also includes African American,
Hispanic American, and Asian/Pacific Islander women. At the
start of the 113th Congress, there were 78 females in the House
and 20 in the Senate, still far below their proportion (over 50
percent) in the general population. Although there have been
elections called the ``Year of the Woman,'' as in 1992, the
influx of female lawmakers has occurred slowly, in part because
of the power of incumbency (most Members are male), family
choices, and a shortage of competitive seats. Nonetheless, the
role of women in today's Congress and in the workforce has
changed significantly. A historic event occurred in January
2007 when Democratic Representative Nancy Pelosi of California
was elected to be the first female Speaker in the House's
history. During the 1920s, women lawmakers ``were a curiosity
both for their male colleagues and the national press, which
devoted considerable attention to their arrival.'' \17\
---------------------------------------------------------------------------
\17\ Women in Congress, 1917-2006 (Washington, DC: GPO, 2006), p.
2. This volume was prepared under the direction of the U.S. Committee
on House Administration and by the Office of History and Preservation,
Office of the Clerk of the House.
---------------------------------------------------------------------------
A profile of congressional Members makes plain that
America's major ethnic groups--African Americans, Hispanics,
and Asians--are underrepresented in Congress. The recent
decennial census of 2010 indicated that African Americans
constitute about 13 percent of the overall population and 10
percent of Congress; Hispanics are near 17 percent of the
national population and around 7 percent of Congress'
membership; and Asians are about 3 percent of Congress'
membership but around 5 percent of the national population.
Despite the obstacles each group has confronted in winning
seats in Congress, such as bigotry and ``Jim Crow'' laws, there
has been progress (albeit slow).
Important to note is a recent and historic House membership
change. In 2013, the Democratic Party was reshaped
demographically: it became a ``majority-minority'' party. More
than half of House Democrats are women, African Americans,
Hispanics, and Asians. A significant consequence of the change
is that women and ethnic minorities inform the policymaking
process in a manner that a Chamber filled almost exclusively
with white men cannot.
The Professionalization of Congressional Service
The career patterns of lawmakers have undergone over time a
number of important changes that have transformed the work and
role of both Congress and its Members. A brief ``then'' (the
19th century and early part of the 20th century) and ``now''
comparison highlights several developments that led to today's
professionalized Congress. Among the changes worth noting are
these two.
part-time to full-time institution
Congress functioned largely as a part-time institution
until around the post-World War II era. One rough indicator of
the shift to a full-time institution is to compare the date of
a Congress' beginning and the date of its adjournment.\18\ By
the 86th Congress (1959-1961), setting aside the war years
(1941-1945), Congress always adjourned during the fall or the
winter months, at times late in December and even into January
3 of the new year. A major contributor to year-round sessions
was an increase in and the complexity of Congress' workload,
triggered by events such as wars and economic crises.
Unsurprisingly, a full-time Congress places large demands on
today's lawmakers. They must handle the requirements of
policymaking and oversight while in Washington, DC (often on a
Tuesday to Thursday schedule), as well as return to their
district or State regularly to serve the needs of their
constituents. Lawmakers today work an average of 70 hours per
week. As the wife of a former Senator noted: ``It is a 24/7/365
[day] position.'' \19\
---------------------------------------------------------------------------
\18\ This information is available in the statistical part of the
Official Congressional Directory, 113th Congress, which is published by
the U.S. Government Printing Office.
\19\ Quoted in Life in Congress: The Member Perspective, A Joint
Research Report by the Congressional Management Foundation and the
Society for Human Resource Management, 2013, p. 33.
---------------------------------------------------------------------------
By comparison, consider the comments of Representative
Joseph Martin, who served continuously in the House for 42
years (1925 to 1967), including stints as Speaker during the
80th (1947-1949) and 83d (1953-1955) Congresses. Contrasting
the House when he was first elected to the House at the end of
his career, Martin stated:
The great difference between life in Congress a generation
ago and life there now was the absence then of the immense
pressures that came with the Depression, World War II, Korea,
and the Cold War. Foreign affairs were an inconsequential
problem in Congress in the 1920s. For one week the House
Foreign Affairs Committee debated to the exclusion of all other
matters the question of authorizing a $20,000 appropriation for
an international poultry show in Tulsa. This item, which we
finally approved, was about the most important issue that came
before the committee in the whole session.\20\
---------------------------------------------------------------------------
\20\ Joseph Martin, My Fifty Years in Politics (New York: McGraw-
Hill Book Co., 1960), p. 47.
Today's year-round Congress grapples with numerous global,
technological, and domestic issues that surely would surprise
former Speaker Martin, from climate change to same-sex marriage
to net neutrality to the threat of terrorist attacks on the
United States. Unsurprisingly, large increases in the Nation's
population contributed to an expansion of Congress' agenda and
gradual increases in the size of the House (hikes in
population) \21\ and the Senate (the admission of new States).
The Nation's population surged from 76 million in 1900 to 152
million in 1950 and more than doubled again to 310 million in
2010. One result of the population increases: there was a
concomitant buildup of legislative staff for Members,
committees, party leaders, and various administrative units
(the Clerk of the House, the Secretary of the Senate, the
Capitol Police, the legislative support units, and so on).
---------------------------------------------------------------------------
\21\ In 1911, the size of the House was statutorily set at 435.
---------------------------------------------------------------------------
Committees, party entities, and parliamentary procedures
have also evolved since the First Congress. From reliance on
temporary select committees used by both Chambers in their
early days, the House and Senate established permanent (or
standing) committees. For example, in 1816 the Senate
established a system of permanent committees ``whose basic
structural philosophy has remained unchanged to this day.''
\22\ The idea of ``structural philosophy'' means that
committees were created to address Congress' expanding workload
through a division of labor. Committees also enabled lawmakers
to develop the specialized expertise required to make informed
public policy. A number of Senate standing committees created
in 1816 exist in both Chambers today, such as panels dealing
with foreign relations, commerce, the judiciary, and military
affairs.
---------------------------------------------------------------------------
\22\ Walter Kravitz, ``Evolution of the Senate's Committee
System,'' The Annals of the American Academy of Political and Social
Science, vol. 411, January 1974, p. 28.
---------------------------------------------------------------------------
length of member service: yesteryear and today
Common during Congress' first several decades was a large
turnover in the membership of each Chamber following every
election.\23\ ``Very high turnover and resignations,'' wrote a
political scientist, ``were hallmarks of the national Senate
and House of Representatives throughout the entire pre-Civil
War period.'' \24\ Setting aside the First Congress, when
everyone was a newcomer, ``turnover of House members exceeded
fifty per cent in fifteen elections--the last of which was held
in 1882.'' \25\ As for the Senate, prior to 1875, ``the average
senator served four years; after 1893, this figure doubled.''
\26\ On the other hand, there were famous Senators (Daniel
Webster, Henry Clay, and John Calhoun, for example) who
served in five consecutive pre-Civil War Congresses. After the
Civil War and Reconstruction, lengthy service in the Senate was
not unusual. By the end of the 19th century, Missouri Senator
``Thomas Hart Benton's record of 30 years of service [1821-
1851] was beaten . . . .'' \27\
---------------------------------------------------------------------------
\23\ Something that merits brief mention is the large number of
contested election cases that occurred during the 19th century,
gradually declining in both Chambers by the start of the 20th century.
The U.S. Constitution (article I, section 5) states: ``Each House shall
be the Judge of the Elections, Returns, and Qualifications of its own
Members . . . .'' During the latter part of the 19th century, evidence
suggests that the majority party in the House prevailed in these
contests as a way to boost their partisan edge in the Chamber. As
Speaker Thomas B. Reed wrote in 1890: ``The decision of election cases
invariably increases the majority of the party which organizes the
House, and which . . . appoints the majority of the Committee on
Elections,'' the panel that reviewed contested election cases. Thomas
B. Reed, ``Contested Elections,'' The North American Review, vol. CLI
(1890), p. 114. For a detailed study of House election contests, see
Jeffrey A. Jenkins, ``Partisanship and Contested Election Cases in the
House of Representatives, 1789-2002,'' Studies in American Political
Development, vol. 18, fall 2004, pp. 112-135; and Matthew N. Green,
``Race, Party, and Contested Elections to the U.S. House of
Representatives,'' Polity, vol. 39, April 2007, pp. 155-178.
Partisanship also influenced the outcome of election contests in the
Senate, but to a lesser extent than in the House. Prior to the direct
election of Senators in 1913 (the 17th Amendment), there were a number
of election contests involving Senators-elect who either bribed State
legislators ``or voters in state legislative elections.'' Jeffrey A.
Jenkins, ``Partisanship and Contested Election Cases in the Senate,
1789-2002,'' Studies in American Political Development, vol. 19, spring
2005, p. 57. Professor Jenkins' two articles contain an array of data
to support his analysis of the contested election process.
\24\ H. Douglas Price, Explorations in the Evolution of Congress
(Berkeley, CA: University of California Institute of Governmental
Studies Press, 1998), p. 54.
\25\ Nelson W. Polsby, ``The Institutionalization of the U.S. House
of Representatives,'' American Political Science Review, vol. 62, March
1968, p. 146.
\26\ Thomas E. Mann, ``United States Congressmen in Comparative
Perspective,'' in Ezra N. Suleiman, ed., Parliaments and
Parliamentarians in Democratic Politics (New York: Holmes & Meier,
1986), p. 232.
\27\ Price, Explorations in the Evolution of Congress, p. 59.
---------------------------------------------------------------------------
One reason for the rapid turnover of pre-Civil War House
Members was the ``rotation principle''--Members served a term
or two and voluntarily chose not to run for reelection. Lengthy
service in the House ``was disregarded by many citizens, was
feared by others as conducive to an aristocracy of
officeholders, or was deemed noxious for incumbents themselves
because `power was too apt to turn the head.' '' \28\ By the
end of the 19th century, the rotation principle gradually gave
way to membership stability because politicians and voters
alike recognized the value of careerism ``as the national
government became the center of policy-making. A
nationalization of politics led to the formation of a political
career structure in which the Senate and House ranked high on
the hierarchy of public offices.'' \29\ The emergence of one-
party States and districts--the South after the Civil War, for
example--also facilitated the reelection of lawmakers.
---------------------------------------------------------------------------
\28\ Ibid., p. 87. Abraham Lincoln observed the rotation principle
and served but a single House term.
\29\ Mann, ``United States Congressmen in Comparative
Perspective,'' p. 233.
---------------------------------------------------------------------------
In today's year-round Congress, longevity of service is
quite common in the contemporary House and Senate, but is
subject to change with the infusion every election cycle of new
lawmakers in both Chambers. Democratic Representative John
Dingell, Jr., of Michigan is the longest serving Member of
Congress ever. He was elected in 1955 in a special election and
announced that he would voluntarily retire at the end of the
113th Congress (2013-2015) after 59 years of consecutive
service. Representative Dingell broke the congressional
longevity record of over 57 consecutive years set by Senator
Robert C. Byrd of West Virginia, who also served in the U.S.
House from 1953 to 1959 and then in the Senate until his death
in June 2010.
The rise of the seniority system (discussed below) and the
power of incumbency also contributed to the attractiveness of
continuous legislative service. Incumbency is powerful in that
incumbent House and Senate legislators running for reelection
are hard to defeat, with a reelection rate of over 90 percent
quite common for the House but with somewhat more fluctuation
for Senate incumbents. Importantly, House and Senate incumbents
usually enjoy a number of advantages over challengers, such as
name recognition, staff resources, access to the media, and the
ability to raise significant campaign funds.
III. The Evolution of Power in the House, 1880-1975
Two traditional centers of power in the House (and Senate)
are committees and parties. During certain historical eras,
party leaders are the major legislative actors rather than the
committee chairs, or vice versa. A prominent scholarly theory--
called ``conditional party government''--explains why party
(centralized authority) or committee (decentralized authority)
government commonly characterize legislative dynamics on
Capitol Hill.\30\
---------------------------------------------------------------------------
\30\ See David W. Rohde, Parties and Leaders in the Postreform
House (Chicago: University of Chicago Press, 1991).
---------------------------------------------------------------------------
The theory posits that two conditions must exist for party
government. First, each party must be internally united in
their policy preferences and political values. Second, the
policy preferences and political values of one party must be
sharply divergent from the other party's. If these two
conditions are present, rank-and-file partisans will empower
and support the agenda put forth by their top leaders. In
contrast, if the two parties are each riven by internal
conflicts and disagreements over policy and other matters--
conditions that promote cross-party coalitions as the pattern
in enacting consequential legislation--then committee
government is the norm. Under committee government, rank-and-
file lawmakers are unwilling to cede power to their top
leaders. Why? Party leaders might exercise their authority in a
manner detrimental to Members' legislative, political, and
career interests.
In brief, there is an inverse relationship between party
power and committee power. ``That is, the party's power `waxes
and wanes' with the committee power.'' \31\ A back-and-forth
pattern between a centralized (party) and decentralized
(committee) House of Representatives characterizes the 1880 to
1975 period.
---------------------------------------------------------------------------
\31\ David W. Brady, ``After the Big Bang House Battles Focused on
Committee Issues,'' Public Affairs Report, March 1991, p. 8. This
publication is produced by the Institute of Governmental Studies,
University of California, Berkeley.
---------------------------------------------------------------------------
The Party Government Era (1880-1910)
During the period from the late 1880s to 1910, two powerful
Speakers, Thomas Reed and Joseph Cannon, dominated House
proceedings by centralizing power in the speakership. Among
their parliamentary powers were these: each determined the
agenda and schedule of the House; referred measures to the
standing committees; appointed Members to the standing
committees; exercised as Presiding Officer an unappealable
right of recognition; and, importantly, each chaired the Rules
Committee, which establishes the conditions for debating and
amending legislation.
It was common also during this era for other top party
leaders (the majority leader and majority whip, for example) to
chair important committees, such as Appropriations and Ways and
Means. Having top party leaders chair influential committees
promoted and strengthened party government. In addition, as the
Nation moved from an agricultural to an industrial society, the
constituency bases of the two parties largely reflected that
divide. As two scholars concluded, ``the high levels of party
voting in the 1890-1910 era were largely the result of the
polarization of congressional parties along both an
agriculture-industrial continuum and sectional lines plus the
political power inherent in the centralized leadership in the
House.'' \32\
---------------------------------------------------------------------------
\32\ David W. Brady and Phillip Althoff, ``Party Voting in the U.S.
House of Representatives, 1890-1910: Elements of a Responsible Party
System,'' Journal of Politics, vol. 36, August 1974, p. 773. Also see
David Brady, Richard Brody, and David Epstein, ``Heterogeneous Parties
and Political Organization: The U.S. Senate, 1880-1920,'' Legislative
Studies Quarterly, vol. 14, May 1989, pp. 205-250.
---------------------------------------------------------------------------
speaker reed (1889-1891; 1895-1897; 1897-1899)
Reed preferred that his party should govern without much
consideration of minority party viewpoints. He acted to ensure
that result by riveting into the House rulebook the principle
of ``majority rule.'' For decades, an obstructionist tactic in
the House was called ``the disappearing quorum,'' which
undermined the ability of the majority party to take action on
its agenda. Under the Constitution, a quorum is a majority of
the membership. Until the speakership of Reed, a quorum meant
those who answered to their names during rollcall votes. As a
dilatory tactic, lawmakers who wanted to block action refused
to answer rollcalls even though they were present in the
Chamber. On January 29-30, 1890, Reed ended the practice by
directing the Clerk to record Members as present in the Chamber
even if they did not vote, thus determining the presence of a
constitutional quorum. He also refused to entertain motions
that he deemed dilatory.
Despite the uproar over his actions to end the disappearing
quorum, the House adopted on February 14, 1890, a major
overhaul of House rules--called the ``Reed Rules''--that
strengthened the concept of party governance. Even before he
became Speaker three different times, he stressed that the
majority party must be responsible for governance. Reed said:
``The best system is to have one party govern and the other
party watch, and on general principles I think it would be
better for us to govern and the Democrats to watch.'' \33\
There is little doubt that Speaker Reed's rules and rulings
dramatically altered House procedures and processes. As one
account noted, the ``Reed Rules'' changed ``the way in which
the House did business [more than] a century ago, [and] they
continue to shape the House today.'' \34\
---------------------------------------------------------------------------
\33\ Samuel W. McCall, The Life of Thomas Brackett Reed (Boston:
Houghton Mifflin, 1914), pp. 82-83. Also see William A. Robinson,
Thomas B. Reed: Parliamentarian (New York: Dodd Mead, 1930).
\34\ History of the United States House of Representatives, 1789-
1994, H. Doc. 103-324 (Washington, DC: GPO: 1994), p. 180.
---------------------------------------------------------------------------
speaker cannon (1903-1911)
Cannon was also a strong proponent of party government. He
had the same parliamentary prerogatives as Speaker Reed, but
Speaker Cannon exercised his procedural powers in a more heavy-
handed (some would say ``dictatorial'') fashion. In effect,
party government under Cannon became one-man rule (dubbed
``Cannonism'' by his opponents). As Democratic Representative
David DeArmond of Missouri said about the Speaker's control of
the Rules Committee:
The Committee on Rules as now constituted is not really a
committee. Nominally it consists of the Speaker and two of his
party associates, of his own selection, and two minority
Representatives . . . . This so-called committee has no regular
meeting days, or weeks, or months--it convenes upon call of the
Speaker. It does not deliberate or in fact determine anything.
When the Speaker has determined to do something, with his
committee as the instrument to be employed, the Rules Committee
is called to meet in the Speaker's room, and his decision . . .
is put forth as the decision of the committee. Then, there is
presented in the House by one of the Speaker's Rules Committee
automatons ``a privileged report from the Committee on Rules,''
and the Speaker's party friends are called upon to enforce by
vote of the House the Speaker's decree. It would be precisely
the same thing, in effect, though less artful, if the Speaker
personally, officially, and directly were to make his own
report of his own action and submit to a vote of the House the
question of making his action the action of the House.\35\
---------------------------------------------------------------------------
\35\ Congressional Record, vol. 44, March 1, 1909, p. 3569.
Numerous Democratic minority Members expressed dismay at
Speaker Cannon's autocratic leadership style. For example, he
determined when or if legislation would reach the floor and
removed lawmakers and chairs from committees if they did not do
his bidding. Dissatisfaction with Cannon's leadership began
steadily to increase; moreover, there were growing numbers of
``insurgent'' (progressive) Republicans entering the House. It
was the Progressive era in the Nation (1890-1920), and a
reform-minded President, Theodore Roosevelt, was in the White
House for part of that time (1901-1909).
Scores of progressive initiatives were proposed to address
corporate greed, political corruption, unsafe and unsanitary
workplace conditions, child labor, and other matters. Although
Speaker Cannon voted against numerous progressive measures (for
example, legislation to require pure food and drugs,
restrictions on child labor, and meat inspections), many made
it into law. Why? As a scholar of the speakership explained:
``As powerful as he was, Cannon had to calculate the costs and
benefits of opposing the popular Roosevelt and the increasingly
progressive mood of the country.'' In short, Speaker Cannon
``could not unilaterally stand in the way of the majority
sentiment of the country without jeopardizing his own
position.'' \36\
---------------------------------------------------------------------------
\36\ Ronald M. Peters, Jr., The American Speakership (Baltimore:
The Johns Hopkins University Press, 1990), p. 78.
---------------------------------------------------------------------------
In the end, a combination of factors led to Cannon's
downfall: his opposition to progressive policies supported by
many voters, fissures within GOP ranks (``regulars'' versus
insurgents) that weakened the Speaker's centralized control,
and his abusive use of parliamentary prerogatives. These
factors led to a historic ``revolt'' of 1910. Insurgent
Republicans and minority Democrats combined in March 1910 to
bring to a close this period of party government in the House.
For example, the Speaker was subsequently removed as chair of
the Rules Committee and stripped of his committee assignment
prerogative.\37\ One analyst stated succinctly that the
conclusion of the Cannon period ushered in a different era.
``As Mr. Cannon's gavel fell, an epoch in the long . . .
history of the American House of Representatives came to an
end. A new era had begun.'' \38\ There was a brief period of
party caucus government that followed, but it was soon replaced
by a ``new era in which [the House] most resembled a set of
feudal baronies.'' \39\
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\37\ The story of the revolt against Speaker Cannon has been told
many times in various books, articles, and newspapers. See, for
example, Charles O. Jones, ``Joseph G. Cannon and Howard W. Smith: An
Essay on the Limits of Leadership in the House of Representatives,''
Journal of Politics, vol. 30, August 1968, pp. 617-646.
\38\ George Rothwell Brown, The Leadership of Congress
(Indianapolis, IN: Bobbs-Merrill Co., 1922), p. 152.
\39\ Peters, The American Speakership, p. 91.
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The Era of Committee Government (1915-1969)
With the end of the strong speakership era, and the
limited duration of the ``King Caucus'' regime,\40\ a new
governing order gradually took hold. The House transitioned
from a centralized, partisan, and hierarchical pattern during
the Reed and Cannon eras to a pattern characterized by
decentralization, bipartisanship, and negotiation. One
manifestation of this development was ending the practice that
allowed the top party leaders also to chair the most
influential committees. To simplify, the central party leaders
lost power and the committee chairs gained power.
---------------------------------------------------------------------------
\40\ The era of caucus governance, dubbed ``King Caucus'' by
journalists, occurred after the 1910 ``revolt,'' the year Democrats won
control of the House. The Democratic electoral victory was attributed
in part to public dismay with ``Cannonism.'' From mainly 1911 to 1915,
the House Democratic caucus exercised significant policymaking
authority. Major measures were first considered in the Democratic
caucus and required a two-thirds vote of the membership before they
could be taken up in the House. On the tariff revision of 1913, for
example, a scholar noted that the ``majority party leaders in the
House, through their Majority Leader, [Oscar] Underwood [of Alabama],
resorted to the caucus, where . . . the proposed tariff bill was to be
given pre-consideration and members attending bound by the [required
two-thirds] caucus vote to vote with the majority of their party when
the schedule should reach a vote on the floor of the House.'' See
Elston Roady, Party Regularity in the Sixty-third Congress (Ph.D.
dissertation, University of Illinois, 1951), p. 29. Majority Leader
Underwood--who also chaired the Ways and Means Committee during this
period--along with other party chieftains exercised significant
influence in ``King Caucus,'' because they awed the ``other members
into submission by their supposed control over the three necessities of
congressional existence--perquisites, patronage, and `pork.' '' See
Wilder Haines, ``The Congressional Caucus of Today,'' American
Political Science Review, vol. 9, November 1915, p. 701. Caucus
governance was a brief period, in part because President Woodrow
Wilson--an admirer of the British parliamentary model--devised a party
program and exercised strong leadership from the White House to advance
it through the Democratic House and Senate.
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With the Speaker shorn of the committee appointment
prerogative, Democrats assigned that responsibility to their
party colleagues on the Ways and Means Committee, where it
remained until 1974. (In that year, Democrats placed the
assignment function for their Members in a party panel--the
Steering and Policy Committee, where it remains to this day.)
Republicans, after the 1910 revolt, placed the assignment
function in their party leader for a few years. In 1916,
Republicans created a party assignment panel that had weighted
voting: a GOP member of the so-called Committee on Committees
cast as many votes as there were Republicans in his State
delegation, a big State advantage in shaping committee
membership. (In 1995, Speaker Gingrich renamed his party
assignment panel the Steering Committee, transformed it into a
leadership-dominated panel, made the Speaker its chair, and
granted the Speaker the right to cast the most votes--five--of
any panel member.)
Two key components undergirded the new House committee
governing system: (1) the rise of a seniority custom that over
time became rigid in determining who became a committee chair,
and (2) the powerful role assumed by the Rules Committee in
recommending how, when, or whether legislation would be taken
up by the House. A new balance of power now existed between
party leaders and the committee chairs, with the chairs having
the most leverage. Party leaders had little choice but to work
with the chairs and ranking members as well as the rank-and-
file of both parties, given the overlap of liberals and
conservatives in each party. Bargaining and accommodating were
the modus operandi of party leaders. They worked to broker
deals with the committee chairs--who could deliver votes to
enact legislation.
committee seniority
Congressional experts offer various reasons to explain why
seniority became the critical factor in determining committee
leaders. (Seniority meant during this era that a Member of the
majority party who served longer and more continuously on a
committee than any other majority party colleague would become
the committee's chair.) Some suggest that the 1910 ``revolt,''
which removed the committee appointment prerogative from the
Speaker, prompted both parties to focus on seniority in
designating committee chairs. ``Strict seniority,'' wrote a
scholar, ``which had meant almost nothing in the House [from
its beginning], had come to mean almost everything in naming
committee chairmen and ranking members by 1920.'' \41\
---------------------------------------------------------------------------
\41\ H. Douglas Price, ``Congress and the Evolution of Legislative
`Professionalism,' '' in Norman J. Ornstein, ed., Congress in Change
(New York: Praeger Publishers, 1975), p. 17. Also see Polsby, ``The
Institutionalization of the U.S. House of Representatives,'' pp. 144-
168.
---------------------------------------------------------------------------
Others point to the rise of ``careerism'' as an important
factor. As several scholars have noted, ``The Congress of the
1800s was infused with `new blood' each election, but by 1920
it had been transformed from a body of amateur members to a
modern legislature of professional politicians with established
careers in Washington.'' \42\ Some also imply that the 1896
electoral realignment of the two parties--GOP dominance in most
of the country with the South in Democratic hands--created safe
seats for most incumbents, which ensured their reelection every
2 years. Another explanation for careerism is the rise of party
primaries in the States. With primaries, voters--not party
bosses--would determine which candidates should represent them
in the House, with their ``political contract'' subject to
renewal every 2 years for good service.\43\
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\42\ See, for example, David Brady, Kara Buckley, and Douglas
Rivers, ``The Roots of Careerism in the House of Representatives,''
paper presented at the annual meeting of the American Political Science
Association, September 1-4, 1994, New York City, p. 2.
\43\ For a review of the various reasons for careerism, see David
Brady, Kara Buckley, and Douglas Rivers, ``The Roots of Careerism in
the U.S. House of Representatives,'' Legislative Studies Quarterly,
vol. 24, November 1999, pp. 489-510.
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Whatever conditions led to seniority, it soon became an
automatic and nearly inviolable method for naming the committee
chairs regardless of which party was in the majority.\44\ And
the chairs asserted authority independent of their party.
Moreover, senility, party loyalty, exceptional ability, or
various infirmities mattered not in who became a committee
chair. As a Texas lawmaker explained in 1938: ``If you were the
next man in line, you got it--that was the way the unvarying
[seniority] rule was.'' \45\ To be sure, many of the chairs
exuded an arrogance of power in how they ran their committees.
---------------------------------------------------------------------------
\44\ See Nelson Polsby, Miriam Gallagher, and Barry Rundquist,
``The Growth of the Seniority System in the U.S. House of
Representatives,'' American Political Science Review, vol. 63,
September 1969, pp. 787-807; Michael Abram and Joseph Cooper, ``The
Rise of Seniority in the House of Representatives,'' Polity, vol. 1,
fall 1968, pp. 35-51; David Vogler, ``Flexibility in the Congressional
Seniority System,'' Polity, summer 1970, pp. 494-507; Raymond E.
Wolfinger and Joan Heifetz, ``Safe Seats, Seniority, and Power in
Congress,'' American Political Science Review, vol. 59, June 1965, pp.
337-349; and James K. Pollock, ``Seniority Rule in Congress,'' The
North American Review, vol. 222, December-January-February 1925-1926,
pp. 235-245.
\45\ Robert A. Caro, The Years of Lyndon Johnson: The Path to Power
(New York: Alfred A. Knopf, 1983), p. 541.
---------------------------------------------------------------------------
For example, when Lyndon Johnson was assigned in 1937 to
the Committee on Naval Affairs, the chair was Carl Vinson of
Georgia, who ran the committee with an iron hand. When Johnson
tried to question witnesses at a hearing, Chairman Vinson
cracked his gavel and recessed the hearing. He took Johnson
into the back room and explained, ``We have a rule in this
committee,'' he said. ``In [the] first year on the committee, a
member [is] allowed to ask one question; in his second year,
two, and so on.'' \46\ Still, most lawmakers supported the
rigid nature of seniority for two key reasons: (1) it minimized
intraparty discord that would be created by competitive
politicking for these positions, and (2) it prevented outside
entities, including the President, from trying to promote as
chairs lawmakers sympathetic to their goals and interests.\47\
---------------------------------------------------------------------------
\46\ Ibid., p. 537.
\47\ In the contemporary House, racial minorities typically support
the rigid application of seniority in naming committee chairs or
committee ranking members. As one account noted, seniority is a
``sensitive issue for the Congressional Black Caucus and Hispanic
caucuses, whose members believe that giving deference to tenure is the
only way to protect minority members from slights, accidental or
intentional, in getting promoted on Capitol Hill.'' See Emma Dumain,
``Pelosi Ignites Caucus by Choosing Side in Ranking Member Battle,''
Roll Call, March 3, 2014, p. 8.
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There is little question that committee chairmen had
complete control of their panel's agenda, resources,
subcommittee structure, and staffing, as well as a large say in
which Members might be appointed to their panel. Frequently,
the chair and ranking minority member worked cooperatively to
shape the measures reported from their committee because they
shared common ideological and policy views. In 1937, after
President Franklin Roosevelt's unsuccessful attempt to ``pack''
the Supreme Court, an unofficial and informal ``conservative
coalition'' of Republicans and southern Democrats emerged to
thwart progressive legislation advocated by Presidents and
northern liberal lawmakers (for instance, civil rights).\48\
---------------------------------------------------------------------------
\48\ James T. Patterson, ``A Conservative Coalition Forms in
Congress, 1933-1939,'' The Journal of American History, vol. 52, March
1966, pp. 757-772. By the 1990s, the conservative coalition was in
decline as conservative southern Democrats were defeated, to be
replaced by conservative Republicans. Congressional Quarterly ended its
annual tabulation of conservative coalition votes after the 105th
Congress (1997-1999).
---------------------------------------------------------------------------
Party leaders such as Speaker Sam Rayburn (1940-1947; 1949-
1953; 1955-1961), the most influential Speaker of the committee
government period, had to bargain, cajole, and persuade the
committee chairs, mainly southern Democrats at the time, to
follow his lead. Majority party leaders simply lacked the means
to require the autonomous chairs to implement an agenda of
party-preferred priorities. The chairs were too influential,
the central party leadership too weak, and the party itself was
split into a southern conservative faction and a northern
liberal faction. As Representative Richard Bolling, a protege
of Speaker Rayburn and one of the ablest legislators of the
20th century, wrote in 1964:
A modern Democratic Speaker is something like a feudal
king--he is first in the land; he receives elaborate homage and
respect; but he is dependent on powerful lords, usually
committee chairmen, who are basically hostile to the objectives
of the National Democratic Party and the Speaker . . . .
Rayburn was frequently at odds with the committee oligarchs,
who rule their own committees with the assured arrogance of
absolute monarchs.\49\
---------------------------------------------------------------------------
\49\ Richard Bolling, House Out of Order (New York: E.P. Dutton &
Co., Inc., 1966), p. 70.
One of the ``absolute monarchs'' was the chair of the House
Rules Committee. A classic example of the authority exercised
by some Rules chairs shows in a comment made by Philip
Campbell, who headed the panel during the 66th and 67th
Congresses (1919-1923). A resolution authorizing an
investigation was supported by many Members, including
lawmakers on the Rules Committee. At a meeting of his panel,
Chairman Campbell told his Rules colleagues: ``You can go to
[hell]. It makes no difference what a majority of you decide;
if it meets with my disapproval, it shall not be done; I am the
Committee; in me reposes absolute obstructive powers.'' \50\
---------------------------------------------------------------------------
\50\ Floyd M. Riddick, Congressional Procedure (Boston: Chapman and
Grimes Publishers, 1941), p. 95. Riddick enjoyed a noteworthy career in
the U.S. Senate. He became Assistant Senate Parliamentarian and served
in that capacity from 1951 to 1964. In 1964, he became Senate
Parliamentarian, a post he held for a decade.
---------------------------------------------------------------------------
house rules committee
In the decades that followed the 1910 revolt, the chair of
the Rules Committee, as illustrated by the Campbell example,
exercised significant independent influence in determining
whether legislation reached the floor for consideration by the
full membership. Most measures reported by committees have no
ready access--a privileged right-of-way (or ``green light'')--
to the House floor. The way committees acquire this privileged
access is to go to the Rules Committee and request that the
panel issue a ``special rule'' (a House resolution) that would
make their bill in order for floor action. If the Rules
Committee grants the special rule and it is adopted by majority
vote of the House, the legislation made in order by the special
rule is considered by the membership. In short, the Rules
Committee is strategically positioned to control the flow of
legislation to the floor, as well as to determine how long
measures may be debated and, importantly, whether they may even
be amended by the rank-and-file membership.
Traditionally, the Rules Committee had a disproportionate
ratio of majority to minority members, regardless of which
party controlled the House. The reason: the panel's important
scheduling role. Despite the Rules Committee membership (eight
majority to four minority after World War II), the bipartisan
conservative coalition was much in evidence. It was often the
case that two conservative Democrats would vote with
Republicans to create a 6 to 6 tie vote. In legislative
assemblies like the House, tie votes lose. A particularly
formidable Rules Committee chair, Howard W. Smith (1955-1967),
was the leader of the conservative coalition on his panel.
the smith chairmanship
``Judge'' Smith, as his colleagues called him, presided
over his committee with an iron hand. He was neither a
``traffic cop'' regulating the flow of bills to the floor nor
an agent of the majority leadership. Instead, he firmly
believed Rules should decide the merit and substance of
legislation. Accordingly, he often blocked measures he
disapproved of and advanced those he favored. An ardent
opponent of civil rights legislation, Smith sometimes refused
to schedule meetings to consider those matters. On one
occasion, when the Speaker was looking for Smith, a colleague
informed Rayburn that Smith had to leave Washington to tend to
a barn that had burned down on his farm. Speaker Rayburn
exclaimed: ``I knew Howard Smith would do almost anything to
block a civil rights bill, but I never knew he would resort to
arson.'' \51\
---------------------------------------------------------------------------
\51\ Alfred Steinberg, Sam Rayburn (New York: Hawthorn Books,
1975), p. 313.
---------------------------------------------------------------------------
Although the Rules Committee lacks authority to amend
bills, the Smith-led panel bargained with committee leaders for
changes in legislation in return for granting rules. Although
many lawmakers were upset with the blocking actions of Chairman
Smith, there was no real challenge to his leadership until the
1960 election when John F. Kennedy was elected President on his
New Frontier Program.
The President, Speaker Rayburn, and many Members who
supported the New Frontier Program realized that Kennedy's
initiatives would be blocked by the Rules Committee. Thus, a
strategy was devised by the Kennedy-Rayburn forces to enlarge
(``pack'') the panel to 15 from 12 members, adding 2 Democrats
sympathetic to President Kennedy's program and 1 Republican.
The expansion resulted from a titanic battle between Speaker
Rayburn and Chairman Smith. The Rayburn-Kennedy forces won, but
only by the narrow vote of 217 to 212, which underscored the
political power of the Rules chair. Smith remained chair, and
the panel still retained influence, in part because the new
Democratic members did not always support granting rules for
liberal legislation.\52\
---------------------------------------------------------------------------
\52\ A compelling account of the enlargement of the Rules Committee
is found in Neil MacNeil, Forge of Democracy, The House of
Representatives (New York: David McKay Co., 1963), Chap. 15.
---------------------------------------------------------------------------
reform sentiment begins to blossom
A group of liberal Democrats--frustrated with their party
leaders, the committee chairs, and the Rules Committee--
organized the Democratic Study Group (DSG) in 1959.\53\ For the
next few decades, it was this informal group--bolstered by the
influx of liberal Democrats--that developed the ideas and
mobilized the votes to shift committee government to
subcommittee government.\54\ In addition, the DSG was
instrumental in winning adoption of changes that strengthened
the Democratic leadership.
---------------------------------------------------------------------------
\53\ See Mark Ferber, ``The Formation of the Democratic Study
Group,'' in Nelson W. Polsby, ed., Congressional Behavior (New York:
Random House, 1971), pp. 249-269.
\54\ Special mention should be accorded to Richard Conlon, the
executive director of the Democratic Study Group from 1971-1988, when
he lost his life in a boating accident. Former Democratic
Representative David Obey, a DSG member, said: ``I don't think it would
be possible to find any congressman or staff member on the Hill who had
as much of an impact as Dick did.'' Another Democrat, Tony Coelho of
California, stated that Conlon ``enjoyed such credibility with so many
House members that virtually no major legislation could pass without
his personal support.'' The quotations are taken from Nelson W. Polsby,
How Congress Evolves, Social Bases of Institutional Change (New York:
Oxford University Press, 2004), pp. 205-206.
---------------------------------------------------------------------------
As for reducing the power of the chairs, the DSG recognized
that the best way to revamp the seniority system was to avoid
amending House rules, which would involve the conservative
coalition of southern Democrats and Republicans. Instead, they
revived use of the Democratic caucus--the highest partisan
instrumentality, where the reformers had the votes--to enact
party rules that would hold the committee chairs accountable
for their actions or inactions.
The thrust of the changes was to shatter the ability of the
``old bulls'' to stymie action on liberal legislation (consumer
protection and environmental bills, for example).\55\ Under
party rules adopted during the 1970s, committee chairs had to
stand for separate, secret ballot election within the confines
of the Democratic caucus.
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\55\ There was even at least one public law that curbed the
authority of the committee chairs: the Legislative Reorganization Act
of 1970. That act ``required committees to adopt written rules, so that
members would know their rights and might adopt rules to curb specific
abuses. It also prohibited general, but not specific, proxies [absentee
voting] in committee votes, to prevent their indiscriminate use by
chairs and other members.'' See Walter Kravitz, ``The Legislative
Reorganization Act of 1970,'' Legislative Studies Quarterly, vol. 15,
August 1990, p. 377. Another key 1970 Legislative Reorganization Act
change was to permit recorded votes in the Committee of the Whole, the
principal amending forum in the House. Prior to the change, votes on
amendments were recorded without names, such as 150 yea to 250 nay. The
change enabled party leaders to exert greater control over floor
decisionmaking by knowing which lawmakers voted as their leaders
wanted, and who had not yet voted and thus needed to be ``whipped'' to
the floor.
---------------------------------------------------------------------------
A dramatic example of the secret ballot's use occurred
following the November 1974 elections when the 75 newly elected
Democrats joined with reform-minded colleagues to oust 3
autocratic and conservative committee chairs, all from the
South. The three were replaced by northern liberals. This
action underscored that Members chair committees at the
sufferance of the party caucus, not by their seniority; hence,
chairs must be accountable and responsive to the policy
preferences of the majority party or face possible ouster by
secret vote of their party colleagues.
Paradoxically, the Democratic reforms contained both
decentralizing and centralizing tendencies. The changes both
dispersed power to subcommittees and to rank-and-file Members,
and enhanced the power of the majority party leadership and the
Democratic caucus. Reform-minded lawmakers saw no disconnect
between the two tendencies. Decentralization granted rank-and-
file lawmakers wider opportunities to influence policy, while
centralization promoted the leadership's enactment of those
policies, which included party-preferred priorities.
leadership prerogatives
The majority leadership acquired during the 1970-1975
period an array of resources that augmented their influence. A
particularly important party rule was adopted in January 1975.
The Speaker won the right to name the chair and the majority
party members of the Rules Committee, subject to ratification
of the party caucus. Henceforth, Rules became known as ``the
Speaker's committee,'' which strengthened the Speaker's agenda-
setting and scheduling prerogatives. The Speaker also took
charge of the committee assignment process. In 1974 the
committee assignment function was removed from the charge of
Ways and Means Democrats and transferred to a strengthened
Steering and Policy Committee, chaired by the Speaker and
composed of many supporters of the Speaker.
In 1975, by House rule, the Speaker also won the authority
to refer bills to more than one committee, called multiple
referrals (ending in part a standing committee's jurisdictional
monopoly of a policy domain). The Speaker could in addition
specify deadlines for committee action on legislation. The
Speaker won authority in House rules to create ad hoc temporary
committees, which he used to create the Ad Hoc Energy Committee
in 1977 to coordinate and draft legislation in response to
President Jimmy Carter's energy plans, which crosscut the
jurisdiction of several standing committees.\56\ Add to all
this a formidable whip system that works to mobilize the votes
to enact the party's agenda. (In the majority after 1994,
Republican Speakers have also had comparable prerogatives.)
---------------------------------------------------------------------------
\56\ Bruce I. Oppenheimer, ``Policy Effects of U.S. House Reform:
Decentralization and the Capacity to Resolve Energy Issues,''
Legislative Studies Quarterly, vol. 5, February 1980, pp. 5-30.
---------------------------------------------------------------------------
The Subcommittee Government Era (1970-1980)
The DSG reformers used the party caucus to win a large
number of party rule changes that shifted power from committee
chairs to subcommittee chairs. First, however, the reformers
had to convince Speaker John McCormack to hold regular monthly
meetings of the caucus, which occurred in 1969. For decades the
caucus was largely moribund because Speakers preferred not to
convene party meetings. Speaker Rayburn ``never made much use
of the Democratic caucus or other institutional leadership
devices, preferring to handle leadership problems in his own
way.'' \57\ Representative Bolling wrote that the Speaker chose
not to use the caucus to avoid clashes over civil rights
between the northern and southern wings of the party.\58\ With
the monthly caucus meetings, Democratic caucus rules were
amended to address numerous reform topics advanced by the DSG.
The years from 1970 to 1975 constitute the high water mark for
``spreading the action'' to numerous subcommittees. Two
changes, one in 1971 and the other in 1973, highlight the shift
from committee to subcommittee government.
---------------------------------------------------------------------------
\57\ Hugh Bone, Party Committees and National Politics (Seattle:
University of Washington Press, 1958), p. 168.
\58\ Bolling, House Out of Order, p. 66. Jerry Voorhis of
California, who served in the House from 1937 to 1947, noted that
Democratic caucuses had been ``almost non-existent, except for
occasions when it was necessary to choose a majority leader or a
candidate for Speaker or to elect a member of the Ways and Means
Committee.'' See Jerry Voorhis, Confessions of a Congressman (Garden
City, NY: Doubleday and Co., 1947), p. 59.
---------------------------------------------------------------------------
1971
In 1971, the Democratic caucus adopted an important party
rules change. It stated that ``no Member shall be chairman of
more than one legislative subcommittee.'' The purpose of this
rule was to create additional committee leadership
opportunities for relatively junior members of the party.
Before the adoption of this rule, some Democratic committee
leaders chaired as many as four subcommittees. Three major
consequences flowed from this party rule: (1) the ``reform
itself brought in a minimum of sixteen new subcommittee
chairmen; (2) the reform spread power to younger, less senior
Members; and (3) the reform improved the lot of non-Southern
and liberal Democrats.'' \59\ In short, the thrust of these
changes was to further decentralize policymaking power to more
Democratic Members. As Speaker Carl Albert stated: ``Today, in
the 21 standing committees of the House, no fewer than 113
Congressmen hold subcommittee chairmanships, an unprecedented
distribution of legislative responsibility to more than 25
percent of the entire House of Representatives.'' \60\
---------------------------------------------------------------------------
\59\ For a detailed account of these developments, see Norman J.
Ornstein, ``Causes and Consequences of Congressional Change:
Subcommittee Reforms in the House of Representatives, 1970-1973,'' in
Norman J. Ornstein, Congress in Change: Evolution & Reform (New York:
Praeger Publishers, 1975), pp. 102-103.
\60\ Congressional Record, v. 117, August 3, 1971, p. E7690.
---------------------------------------------------------------------------
1973
Two conditions facilitated the adoption of additional party
reforms: the election of new Democrats receptive to change, and
the defeat or retirement of tradition-bound Members. Another
significant party reform was the subcommittee ``bill of
rights'' that strengthened the independence of subcommittees
and provided for a more equitable distribution of choice
subcommittee positions between junior and senior committee
members. Specifically, the subcommittee ``bill of rights''
established a mini-Democratic caucus on each standing committee
to meet prior to the full committee's organizational session at
the start of a new Congress to select subcommittee chairs;
determine subcommittee jurisdictions; establish party ratios on
subcommittees that generally reflected the ratio in the full
House; ensure that each subcommittee had an adequate budget and
staff to discharge its responsibilities for legislation and
oversight; and guarantee all Members a major subcommittee
assignment insofar as vacancies are available. In addition, the
reforms made clear that chairs must refer legislation to
subcommittees within 2 weeks, unless the full committee
determined otherwise. In short, the subcommittee bill of rights
enhanced the role of these panels, strengthened their autonomy,
and reduced the authority of the committee chairs. On the other
hand, the bill of rights ushered in a new era of centralized
leadership control.
IV. Prelude to Centralized Control
Reining in the powers of the committee chairs fostered a
more open policymaking process that was welcomed by Members. A
participatory ethos permeated the House as rank-and-file
lawmakers played a larger role in legislative decisionmaking in
committee and on the floor. Many newly elected lawmakers--a
``new breed''--dismissed out of hand the old ``go along, get
along'' attitude of the Rayburn era; they were
antiestablishment and media-savvy, and wanted to shake up the
established legislative order.\61\ And many newer Members had
the staff resources, subcommittee leadership positions, and
encouragement from outside interest groups to assume a larger
role in legislative decisionmaking. As a scholar recounted,
there was an ``explosion of floor amendments'' in the
House.\62\ To a large extent, the floor became the Chamber's
center of action and contention.
---------------------------------------------------------------------------
\61\ An important change that facilitated the election of change-
oriented lawmakers involved the U.S. Supreme Court. During the 1960s
(and after), the Court made a series of landmark decisions that
required House districts to be substantially equal in population: the
so-called ``one person, one vote'' principle. A major effect of these
decisions was to reduce the number of rural districts and to increase
the number of urban and suburban districts.
\62\ See Steven S. Smith, Call to Order: Floor Politics in the
House and Senate (Washington, DC: Brookings Institution, 1989), p. 16.
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These various developments--the end of the committee
oligarchic system, the election of a new generation of change-
oriented lawmakers, more pressure groups skilled in advocacy on
Capitol Hill and in Members' constituencies, the rise of new
and complex issues, and the proliferation of competing centers
of power on Capitol Hill--combined to make the job of
governance difficult for the Democratic majority. It was simply
harder for majority party leaders to achieve legislative
accomplishments for two key reasons: (1) lawmakers in their own
party wanted to offer scores of amendments to legislation,
creating uncertainty as to their policy and political
implications; and (2) the election of new Republicans who
worked constantly to undermine and uproot Democratic control of
the House. A GOP freshman elected in 1978, Newt Gingrich of
Georgia, was especially skilled in frustrating and angering the
Democratic majority.
The Influence of Representative Gingrich
Gingrich and his initially small band of allies, which grew
over time, devised a strategy to take over the House.
Gingrich's plan included: employ the Chamber's parliamentary
procedures to frustrate the best-laid procedural and policy
plans of the Democratic majority; offer ``November amendments''
to force vulnerable Democrats to vote on electorally ``hot
button'' issues that could cause them political grief in the
next election; recruit and train challengers to Democratic
incumbents; and use a nonlegislative debate period at the end
of the day when floor business had concluded to launch
political and policy attacks over C-SPAN (the Cable Satellite
Public Affairs Network) against Democratic leaders and their
management of the House. (Coincidentally, Gingrich entered the
House as a freshman when C-SPAN in 1979 began gavel-to-gavel
coverage of the Chamber's floor proceedings.)
``Conflict equals exposure equals power'' was part of
Gingrich's formula for winning GOP control of the House.\63\
Regularly, House Republicans castigated the Democrats for
``abuse of power and [treated] their misdeeds'' as equivalent
to the ``biggest scandals in American history.'' \64\
Representative Gingrich even devised an approach--using ethics
as a partisan weapon--to compel Speaker Jim Wright (1987-1989)
to resign from the House. After Speaker Wright's resignation, a
Democratic chair from Texas, Jack Brooks, exclaimed: ``There's
an evil wind blowing in the halls of Congress today that's
reminiscent of the Spanish Inquisition.'' \65\ To many
Democrats, the Gingrich game plan seemed directed at
delegitimizing and denigrating Democratic control of the
House.\66\ In Speaker Wright's view, ``Torpedoing Congress and
blaming the Democrats has been Newt's route to power.'' \67\
From Representative Gingrich's perspective, an aggressive and
militant approach toward the Democratic majority would catapult
Republicans into the majority. As Gingrich stated, ``I'm tough
in the House, because when I arrived, the Republican Party was
a soft institution that lacked the tradition of fighting. You
had to have somebody who was willing to fight.'' \68\
---------------------------------------------------------------------------
\63\ Howard Fineman, ``For the Son of C-Span, Exposure Equals
Power,'' Newsweek, April 3, 1989, p. 23.
\64\ David Maraniss and Michael Weisskopf, ``Tell Newt To Shut
Up!'' (New York: Simon & Schuster, 1996), p. 6.
\65\ Dan Balz and Ronald Brownstein, Storming the Gates, Protest
Politics and the Republican Revival (Boston: Little, Brown and Company,
1996), p. 125.
\66\ In the opinion of former Representative Barney Frank, Gingrich
``transformed American politics from one in which people presume the
good will of their opponents, even as they disagreed, into one in which
people treated the people with whom they disagreed as bad and
immoral.'' See Andrew Goldman, ``The Not-So-Retiring Barney Frank,''
The New York Times Magazine, January 22, 2012, p. 12.
\67\ Balz and Brownstein, Storming the Gates, p. 125.
\68\ Ronald Brownstein, The Second Civil War: How Extreme
Partisanship Has Paralyzed Washington and Polarized America (New York:
The Penguin Press, 2007), pp. 137-138.
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Democrats Respond
By the late 1970s and into the 1980s, the Democratic-led
House confronted an array of new challenges, compounded by the
election in 1980 of Ronald Reagan as President. President
Reagan's agenda was anathema to many Democrats: cut taxes,
increase funding for the military, and slash the size of the
Federal Government. Noteworthy, with Reagan in the White House
and Republicans in control of the Senate (1981-1987), Speaker
Thomas ``Tip'' O'Neill (1977-1987) assumed the role of national
party spokesperson for the Democratic Party, expanding the
Speaker's public ``messaging'' role then and now.
To counter the GOP's agenda from the Reagan White House and
the Gingrich-led tactics in the House, Democratic Speakers
(O'Neill, Wright, and Tom Foley, 1989-1995), urged on by their
rank-and-file Members, developed new strategies to achieve
their policy goals. In effect, the decentralizing thrust of the
earlier reforms gradually gave way to a new configuration of
internal power: the recentralization of authority in the
majority party leadership. In short, the ``postreform
Congress'' was in the process of being replaced by another
governing model: the ``postreform-reform Congress.''
The Rules Committee played a pivotal role in strengthening
the Speaker and the Democratic leadership. The panel developed
an array of innovative special rules that granted majority
party leaders greater control over floor procedures, such as
keeping unfriendly amendments off the floor, those designed to
embarrass majority lawmakers or to eviscerate majority party
initiatives. In short, innovative special rules were devised to
produce greater certainty in a more conflict-ridden and
unpredictable environment.\69\ By limiting and structuring
amendment choices--if any were allowed at all (a closed rule)--
the majority party skewed the procedural playing field to get
the policy outcomes it wanted. Innovative special rules
contributed to the sharp rise in rancorous partisanship.
Minority Republicans complained loudly about the lack of
democracy in the House. Procedural warfare between the majority
and minority parties became intense and commonplace.
---------------------------------------------------------------------------
\69\ Stanley Bach and Steven S. Smith, Managing Uncertainty in the
House of Representatives: Adaptation and Innovation in Special Rules
(Washington, DC: The Brookings Institution, 1988).
---------------------------------------------------------------------------
An Earthquake Election: November 1994
In a dramatic change of power, the 1994 midterm elections
produced a resounding victory for Republicans. Long dubbed the
``permanent minority'' by various analysts and commentators,
the GOP won control of the House for the first time in 40
years. And the nemesis of House Democrats, Newt Gingrich,
became the Speaker. The 1994 election also saw Republicans
sweep the Senate and win 14 gubernatorial contests. In fact, no
GOP House Member, Senator, or Governor running for reelection
was turned out of office. Only Democratic incumbents were
targeted for defeat by the voters. As one defeated House
Democrat said: ``People thought they knew who to blame [for the
country's economic and social problems] and they did it with a
vengeance.'' \70\
---------------------------------------------------------------------------
\70\ Edward Walsh, ``Democrats Seeking Reversal of Fortune in House
Races,'' The Washington Post, September 10, 1995, p. A6.
---------------------------------------------------------------------------
Many reasons accounted for the Democrats' defeat and the
GOP's landslide victory. One was voter disgruntlement with
President Clinton's agenda, such as the administration's failed
attempt to revamp the Nation's health care system. Another was
the public's dismay with partisan bickering and policy gridlock
and its outrage over a ``House bank'' scandal that provoked
scathing political commentary and negative editorials. For
example, a lead editorial about the 103d Congress (1993-1995)
in The Washington Post had the headline: ``Perhaps the Worst
Congress.'' It stated: ``This will go down in the record books
as perhaps the worst Congress--least effective, most
destructive, nastiest--in 50 years.'' \71\
---------------------------------------------------------------------------
\71\ ``Perhaps the Worst Congress,'' The Washington Post, October
7, 1994, p. A24.
---------------------------------------------------------------------------
V. The Return of Party Government
From at least the 104th Congress (1995-1997) forward, the
House has functioned in the manner implied by the conditional
party government theory: like a parliamentary or quasi-
parliamentary body. Recall that the theory states that rank-
and-file lawmakers support strong party leaders and
organizations when the party is united on its policy
preferences. In addition, those preferences must diverge
significantly from the other party's. When those conditions
exist, the House functions in a strong leadership environment.
If they do not exist, when there is little homogeneity of
policy and ideological agreement within each party, the House
operates in a weak leadership environment. Think of Speakers
like Rayburn during the 1950s: they had to win the support of
committee chairs and senior lawmakers, including liberal and
conservative centrists in each party, to enact legislation.
Today, the House is as partisan and polarized as the
Congresses that preceded the Civil War. On the partisan side,
there are record levels of party unity on key votes.\72\ Like
parliamentary bodies, on numerous issues a majority of
Republicans vote on one side and a majority of Democrats on the
other side. Party unity occurs regularly because the two
parties exhibit a high degree of ideological cohesion, which
reflects the electoral bases of the two parties. Voters who
share ``blue'' or ``red'' policy and ideological views now
align either with the Democratic or Republican Parties.
Regularly, voters cast straight party-line votes in
congressional and Presidential elections.\73\
---------------------------------------------------------------------------
\72\ John Cranford, ``Hard Lines Made Harder,'' CQ Weekly, February
3, 2014, pp. 168-201.
\73\ Gary C. Jacobson, ``Partisan Polarization in American
Politics: A Background Paper, Presidential Studies Quarterly, vol. 43,
December 2013, p. 700.
---------------------------------------------------------------------------
The beliefs of American voters ``have grown more internally
consistent, more distinctive between parties, and more
predictive of voting in national elections.'' Unsurprisingly,
voters have joined or voted with the political party most in
line with their views and values, and this reality has ``given
the congressional parties more internally homogenous,
divergent, and polarized electoral bases.'' \74\ By contrast,
it was common in the post-World War II Congresses that liberal
and conservative lawmakers were plentiful in both major
parties. That condition is not the case today.\75\ In its place
are two parties with sharply different and distinct world views
on a host of issues, many tied to the role and reach of the
national government. Finding majority consensus in this
environment can be a difficult, time-consuming, and sometimes
fruitless process.
---------------------------------------------------------------------------
\74\ Ibid., p. 691.
\75\ One analysis found that, during the last 30 years, centrists
in the U.S. House have largely disappeared. ``In 1982, 344 out of 435
House members were viewed as being in the ideological middle, drawing
equally from both parties. In 2012, only 13 House members were
classified as being in the middle.'' See Michael Kranish, ``Ideas
Abound for Breaking Logjam, but D.C. Isn't Listening,'' The Boston
Globe, August 8, 2013, p. 5.
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Compromise Under Stress
One result of polarization is not only that bargains and
compromises are much harder to achieve today, but
anticompromise sentiment is evident in Congress and in the
country. As a House Republican remarked, ``When it comes to
compromise, half of a bad deal is still a bad deal.'' \76\ An
analyst concluded that a number of Members and outside groups
are ``ideologically opposed to compromise. They have made a
reasoned judgment that compromise has served the country and
the Constitution poorly.'' \77\ [emphasis in original] Many
lawmakers also worry that if they work with opposition party
Members to craft policy compromises, they will be challenged in
the next primary election by someone more liberal (the
Democratic worry) or more conservative (the GOP concern) than
they are.
---------------------------------------------------------------------------
\76\ Meredith Shiner, ``The Speaker of the Unruly,'' CQ Weekly,
September 10, 2012, p. 1834.
\77\ Jonathan Rauch, ``Rescuing Compromise,'' National Affairs,
fall 2013, p. 121.
---------------------------------------------------------------------------
Yet despite acrimonious partisanship, and the reelection
interests of Members and the two parties, a fundamental job of
the Speaker is to search for common ground within the majority
party, between the two parties and Chambers, with the White
House, and with outside interests. Otherwise, legislative
accomplishments will be few and far between. As a seasoned
journalist explained:
There is one unavoidable fact about legislating in a
democratic system. No single person, faction, or interest can
get everything it wants. Legislating inevitably means
compromising, except in the rare circumstances when consensus
is so strong that one dominant view can prevail with ease.\78\
---------------------------------------------------------------------------
\78\ Robert Kaiser, Act of Congress: How America's Essential
Institution Works, and How It Doesn't (New York: Knopf, 2013), p. 174.
Bipartisan compromises may be good or bad, but they cannot
be achieved if the two parties emulate parliamentary systems:
one party governs and the other opposes. The Nation's
congressional-Presidential system, with its many checks and
balances, usually blocks governance exclusively by the majority
party. Recall that the Constitution does not make lawmaking
easy, in part to ensure deliberation, the ventilation of
diverse views, and the consent of the governed. One elective
branch cannot impose its will on the others, even if controlled
by the same party.
How, when, or if to make a deal--to balance compromise with
conviction, party loyalty with constituency opinion--rests to a
large extent on the talents of party leaders. Compromises may
``leave everyone unhappy to a degree,'' stated a House Member,
``but also with something they wanted.'' \79\ To be sure, party
leaders may want to follow a ``no compromise'' strategy on
certain measures or matters. Inaction rather than action may
serve their policy, partisan, and political interests. A
Congress castigated as ``do nothing'' depends on whether one
agrees with the lack of action on various policy matters. As a
Member of the current House Republican majority pointed out,
the membership is ``stopping bad legislation and initiatives,''
which is plainly doing something rather than nothing.\80\
---------------------------------------------------------------------------
\79\ Lee H. Hamilton, ``We Need To Embrace Compromise, Not Insult
It,'' The Center on Congress at Indiana University, May 16, 2011, p. 2.
\80\ Billy House, ``Doing Nothing Is--to Some--Doing Something,''
National Journal Daily, July 9, 2014, pp. 1, 8.
---------------------------------------------------------------------------
A ``no compromise'' strategy is sometimes employed by the
minority party to foil favorable action on priorities of the
opposition party. The minority's electoral goal: to permit
minority party Members and outside supporters to campaign
against the majority party in the next election for presiding
over a so-called ``do nothing'' Congress. Whether gridlock on a
measure is better than compromise might depend on whether party
leaders believe they can get a better deal by waiting, or
whether they prefer no deal in order to engage in ``contrast
politics'' on the campaign trail.\81\
---------------------------------------------------------------------------
\81\ For an excellent analysis of ``getting to yes'' in Congress,
see Sarah A. Binder and Frances E. Lee, ``Making Deals in Congress,''
in Jane Mansbridge and Cathie Jo Martin, eds., Negotiating Agreement in
Politics (Washington, DC: American Political Science Association,
2013), pp. 54-72.
---------------------------------------------------------------------------
Three recent Speakers--Republicans Newt Gingrich (1995-
1999) and Dennis Hastert (1999-2007), and Democrat Nancy Pelosi
(2007-2011)--consolidated in their hands procedural, political,
and policy control of the House. Much has been written about
their respective speakerships,\82\ so only a few pertinent
observations will be made about each leader. Unlike earlier
eras, the portfolio of contemporary Speakers is much more
extensive. The job today involves more than presiding over the
House, referring measures to the appropriate committees, or
naming lawmakers to serve on conference committees. Speakers
now must exercise political and policy leadership inside and
outside Congress; act as their party's public spokesperson;
recruit, fundraise, and campaign for their party's candidates;
develop legislative and political strategies for the party they
head; and develop and promote the party's message and ``brand''
to the general public in a 24/7 communications environment.
Party leaders use the media to complement their legislative
strategies, generate grassroots support for policy initiatives,
respond to partisan criticisms, and promote their agenda.
---------------------------------------------------------------------------
\82\ See, for example, Balz and Brownstein, Storming the Gates;
Jonathan Franzen, ``The Listener: How Did a Former Wrestling Coach End
Up Running the House of Representatives?'' The New Yorker, October 6,
2003, pp. 85-99; and Ronald M. Peters, Jr. and Cindy Simon Rosenthal,
Speaker Nancy Pelosi and the New American Politics (New York: Oxford
University Press, 2010).
---------------------------------------------------------------------------
speaker gingrich (1995-1999)
When Republicans won the House in November 1994, Newt
Gingrich was the party's unanimous choice for Speaker. He was a
unique Speaker in many respects. For a time in the mid-1990s,
he rivaled the White House in setting the agenda of Congress
and the Nation, functioning like a prime minister in a
parliament. His initial agenda, which the party campaigned on,
was the ``Contract with America.'' \83\ Consisting of ten broad
policies, Gingrich promised that within the first 100 days of
the 104th Congress (1995-1997), the GOP-controlled House would
vote on every Contract item. The House accomplished the goal in
less than 100 days. Nearly every Republican marched in lockstep
to vote for the Contract proposals. Why? Three reasons account
for the party unity. First, most Republicans believed that they
were in the majority because of Gingrich's leadership. He
recruited and trained many Members of his new majority and
provided them with essential financial support. Second, GOP
lawmakers were united in their support of the Contract
proposals, such as adding a balanced budget amendment to the
Constitution. Finally, the new GOP majority recognized that
they needed to succeed at governance after 40 years in the
minority. The GOP's responsibility for governing ``requires
greater assets in the leader's office,'' said Gingrich.\84\ As
for governance, Speaker Gingrich was instrumental in winning
enactment of consequential measures in such areas as health
care, the minimum wage, and welfare reform.
---------------------------------------------------------------------------
\83\ Some Democrats called the GOP plan the ``Contract on
America.''
\84\ David S. Cloud, ``Gingrich Clears the Path for Republican
Advance,'' Congressional Quarterly Weekly Report, November 19, 1994, p.
3319.
---------------------------------------------------------------------------
A notable centralizing aspect of Gingrich's speakership was
his influence over committees. Not only did Gingrich personally
select specific Members to chair committees, ignoring seniority
in the process, he also required the GOP members of the
Appropriations Committee to sign a written pledge that they
would heed the Republican leadership's directives for spending
reductions. He often bypassed committees entirely by
establishing leadership task forces to process legislation.
Most significantly, he changed House rules to impose term
limits of 6 years on all committee and subcommittee chairs so
that no GOP chair could accumulate over time the influence to
challenge the majority leadership.\85\
---------------------------------------------------------------------------
\85\ Some term-limited GOP chairs also decide to leave the House.
Representative Dave Camp, MI, who chaired the influential Ways and
Means Committee, announced that he would not seek reelection to the
114th Congress (2015-2017). As one account noted, without special
dispensation from Speaker Boehner, Camp ``would go back to being in the
rank and file--a rough assignment for a veteran like Camp.'' See ``Dave
Camp Won't Seek Reelection,'' Politico, April 1, 2014, p. 14.
---------------------------------------------------------------------------
speaker hastert (1999-2007)
Hastert became Speaker following Gingrich's resignation
from the House after the party's poor showing in the November
1998 midterm elections. After the turmoil of the Gingrich
years, Republicans selected the pragmatic Dennis Hastert to be
Speaker, who retained the powers of his predecessor (enforcing
term limits on the committee chairs and using the Rules
Committee to achieve party objectives, for example). The
longest serving GOP Speaker ever (1999-2007), Hastert exercised
``top down'' command of the House and followed a partisan
governing strategy. An example of his leadership influence over
committees occurred when the Veterans' Affairs Committee chair
at a Republican meeting criticized the party's budget
resolution for not spending enough on veterans. Speaker Hastert
``got up and shut him down,'' said a witness to the tongue
lashing. ``I've never seen anything like that. It was
scathing.'' \86\ When the chair continued his advocacy for more
spending on veterans, the Speaker removed him as chair and even
from the committee itself.
---------------------------------------------------------------------------
\86\ Ben Pershing, ``Smith Spars with Leaders,'' Roll Call, March
26, 2003, p. 13.
---------------------------------------------------------------------------
The Speaker also articulated what became known as the
informal ``Hastert rule.'' My role, he said, is ``to please the
majority of your majority . . . . The job of the Speaker is not
to expedite legislation that runs counter to the wishes of the
majority of his majority.'' He added: ``I do not feel
comfortable scheduling controversial legislation unless I know
we have the votes on our side first.'' \87\ Thus, even if there
was a bipartisan coalition to pass legislation, there was great
reluctance on the part of Speaker Hastert to schedule floor
action on those measures. To ensure that he had the votes,
Speaker Hastert relied on one of the most influential majority
whips and then majority leader ever--Tom DeLay of Texas--to
enforce party discipline. His nickname was ``The Hammer,''
which highlighted DeLay's persuasive techniques. And with
President George W. Bush in the White House, House Republicans
worked to stay united in backing administration proposals. A
major policy success of Speaker Hastert's was winning enactment
into law (2003) of the most significant change to Medicare (a
prescription drug benefit for seniors) since Medicare was
created during the administration of President Lyndon Johnson.
---------------------------------------------------------------------------
\87\ Speaker J. Dennis Hastert, ``Reflections on the Role of the
Speaker in the Modern Day House of Representatives,'' The Cannon
Centenary Conference, H. Doc. 108-204 (Washington, DC: GPO, 2004), p.
62.
---------------------------------------------------------------------------
speaker pelosi (2007-2011)
Nancy Pelosi, analysts suggest, was the most formidable
Speaker in decades, even exceeding the ``top down,''
centralized style of her two immediate predecessors. A hands-on
and results-oriented leader, she spent considerable time
listening to and wooing her rank-and-file colleagues to support
party-preferred policies. To be sure, she was not reluctant to
give directions and deadlines to her standing committee chairs
and to bring priority legislation to the floor with special
rules that limited amendment opportunities for the minority
party.
Her persuasiveness is illustrated by these two examples,
both involving President Obama's landmark, but controversial,
health care overhaul (the Affordable Care Act) that was enacted
into law in 2010 when the government was unified for a time
under Democratic control. First, when an aide mentioned that
the party whips needed to get busy and lobby 68 wavering
Democrats who were worried about their reelection if they voted
for the President's health overhaul, Speaker Pelosi responded,
``I'll take all sixty-eight.'' \88\ Second, when things looked
particularly bleak for passage of the Affordable Care Act \89\
and the White House was contemplating moving away from a
comprehensive change and proposing a pared-back health bill, it
was Speaker Pelosi who said no to any ``kiddie-care'' plan.
``We will go through the gate. If the gate is closed,'' she
exclaimed, ``we will go over the fence. If the fence is too
high, we will pole vault in. If that doesn't work, we will
parachute in. But we are going to get [comprehensive] health
care reform passed.'' \90\ Her Senate counterpart, Majority
Leader Harry Reid, summed up Pelosi's leadership style: ``She
runs the House with an iron hand.'' \91\
---------------------------------------------------------------------------
\88\ Sheryl Gay Stolberg, Jeff Zeleny, and Carl Hulse, ``The Long
Road Back,'' The New York Times, March 21, 2010, p. A1.
\89\ Democrats lost their filibuster-proof, 60-vote margin in the
Senate when Republican Scott Brown won a special election in January
2010 to replace Senator Edward Kennedy of Massachusetts, who had died.
\90\ Stolberg, Zeleny, and Hulse, The Long Road Back, p. A1.
\91\ Congressional Record, v. 153, December 5, 2007, p. 32124.
---------------------------------------------------------------------------
speaker boehner (2011- )
Historians and others will assess Speaker John Boehner's
leadership approach and legislative record when he leaves
office. For now, three general and tentative observations seem
pertinent. First, after serving with the three previous
Speakers, Boehner wanted to avoid managing the House in a ``top
down'' command style. He preferred to decentralize authority to
the committees and follow a more participatory approach to
lawmaking. He had some successes in employing this approach,
but not as many as he would like for a key reason: the lack of
followers. ``I've never been shy about leading,'' said Speaker
Boehner. ``But you know, leaders need followers.'' \92\
---------------------------------------------------------------------------
\92\ Darren Samuelsohn, ``Boehner: House GOP Like `218 Frogs in a
Wheelbarrow,' '' Politico, May 21, 2012, p. 11. Despite the Speaker's
problems winning the votes of some GOP newcomers, a journalist noted
that he ``taught them there's only so much you can do when you control
the House, but not the Senate or White House, and a GOP Conference that
is divided does even less.'' See AB Stoddard, ``Boehner: A True
Leader,'' The Hill, February 13, 2014, p. 19.
---------------------------------------------------------------------------
Second, one of the two conditions essential to strong
speakerships, according to the conditional party government
model, is sometimes not present in House GOP ranks: internal
cohesion and unity on leadership-preferred objectives. House
Republicans at times seem more fractured and factionalized than
in the Gingrich and Hastert eras. This hampers Speaker
Boehner's ability to lead his party in an ideologically charged
House. A former House GOP majority leader, Dick Armey of Texas
(1995-2003), suggested that Speaker Boehner confronts a more
difficult governing environment than faced by either Speakers
Gingrich or Hastert. ``In the old days, the minority tried to
create chaos and the majority tried to create a functioning
majority to get things done,'' he said. ``Lately we got both
the majority and the minority trying to create chaos, and a
public very upset that these guys can't get anything done.''
\93\
---------------------------------------------------------------------------
\93\ Jill Lawrence, ``Former House Leaders Say Current Group Has It
Rough,'' National Journal Daily, September 23, 2013, p. 1.
---------------------------------------------------------------------------
Third, it is hard to advance GOP priorities into law when
Democrats control the Senate and the White House. Absent
tripartite consensus, legislative gridlock predominates on many
critical issues. Moreover, influential outside conservative
groups and media commentators often demand that House
Republicans remain ideologically pure on many issues or face
primary challengers recruited and financed by various
conservative entities.
VI. Major Senate Developments
Constitutionally, the Senate is different from the House in
many respects: size, term, and constituency, for example. It
also seems to be a more tradition-bound institution than the
House. For example, the ``majority rule'' House permitted
gavel-to-gavel coverage of its floor proceedings over C-SPAN
much sooner than the Senate. Seven years after the House began
televised coverage of their proceedings, the Senate followed
suit in 1986.\94\ Staggered elections--only one-third of the
Senate membership is up for reelection every 2 years--no doubt
tempers the passions and pressures for major institutional
change. Newly elected, reform-minded Senators join two-thirds
of the Senate's membership that ran for election or reelection
when institutional renewal was not an issue that resonated with
the public. Moreover, the ability of a single Senator or small
group of lawmakers to block unwanted innovations, through
prolonged debate (the filibuster) or other dilatory tactics,
means that legislative changes are likely to occur
incrementally and only with the consent of at least a
supermajority of Senators.
---------------------------------------------------------------------------
\94\ Richard F. Fenno, ``The Senate Through the Looking Glass: The
Debate over Television,'' Legislative Studies Quarterly, vol. 14,
August 1989, pp. 313-348.
---------------------------------------------------------------------------
On the other hand, the Senate, like the House, is
constantly evolving as new lawmakers are sworn in, veteran
Members retire, and outside developments (elections, wars,
economic crises, and so on) influence Chamber and Member
activity. There are also historic parallels between the two
Chambers. The Senate had an early ``party government'' era
(from about 1890 to 1910) that approximated that of Speaker Joe
Cannon's. Instead of Cannon's one-man rule, four GOP Senators
and their allies exercised oligarchic control over Senate
proceedings, with Nelson Aldrich of Rhode Island (1881-1911)
their leader. (The press dubbed his leadership ``Aldrichism.'')
The other three GOP Senators were William Allison of Iowa,
Orville Platt of Connecticut, and John Spooner of Wisconsin.
The four, along with their allies (many the products of
State party machines \95\), chaired or were members of the most
important Senate committees. For example, Senator Aldrich
chaired the Finance Committee (the other three were also
members of the panel) and Allison chaired Appropriations.
Members of this group also chaired the party caucus, controlled
the committee assignment process, and dominated the party panel
(the Steering Committee) concerned with scheduling
legislation.\96\ As a legislative historian stated, ``Never
before in the history of the Senate were the outstanding
committees so monopolized by the party leaders.'' \97\
Bolstering party government was the 1894-1896 electoral
realignment, which ``yielded two homogeneous Senate parties
with distinctly different electoral bases and different policy
positions.'' \98\
---------------------------------------------------------------------------
\95\ Much of the 19th century was the era of party machines, or
``bossism,'' in States and localities around the Nation. They
controlled nominations to public offices and turned out their
supporters at election time. There was intense electoral competition
between the parties to control political offices to reap the benefits
of patronage. Issues were of less importance than control of the
``spoils system.'' See David Brady, ``In Their Heyday, Parties Ran on
Patronage and Provided Candidate Insurance,'' Public Affairs Report,
winter 2000, pp. 1, 6-8.
\96\ David J. Rothman, Politics and Power: The United States
Senate, 1869-1901 (Cambridge, MA: Harvard University Press, 1966), p.
48.
\97\ Ibid., p. 58.
\98\ David Brady, Richard Brody, and David Epstein, ``Heterogeneous
Parties and Political Organization: The U.S. Senate, 1880-1920,''
Legislative Studies Quarterly, vol. 14, May 1989, p. 207. The elections
of 1894, which produced large GOP majorities in the House (246R, 104D)
and Senate (44R, 30D), and 1896 (Republican William McKinley was
elected President) produced what scholars call an electoral
realignment. In brief, realignments mean that numerous voters opt to
change their support for one party and shift it to the other. The
result is that the ``gaining'' party dominates the political
environment for a relatively long period of time. In this case,
Republicans held the White House and Congress for most of the time
between 1896 and the 1932 election of Democrat Franklin Delano
Roosevelt as President. Roosevelt's election ushered in another
electoral realignment: a long period of Democratic control of the White
House and Congress. During Senator Aldrich's time, Republican States
were largely industrialized and urban and located in the East and
Midwest; Democratic States were mainly rural and situated in the South
and border States. Among the issues that divided the parties were their
views on the money supply--a gold (contraction) versus silver
(expansion) standard--and the tariff, protective as favored by
Republicans, lower as favored by Democrats.
---------------------------------------------------------------------------
``Aldrichism'' held sway in the Chamber from the late 1890s
until Senator Aldrich voluntarily retired in 1911, the last of
the big four to depart the Senate. Under Aldrichism, ``members'
policy preferences were realized through strict party
control.'' \99\ Senator Aldrich not only combined party and
committee leadership, but his persuasive skills and knowledge
of how to win the support of party colleagues is reminiscent of
Lyndon Johnson's leadership of the Senate from 1955 to 1960. As
a commentator of the time said about Senator Aldrich, he paid
---------------------------------------------------------------------------
\99\ Brady, Brody, and Epstein, ``Heterogeneous Parties and
Political Organization,'' p. 213.
close attention to everything pertaining to the Senate. He was
always in the Senate or near at hand, and he always knew what
was going on, either by personal observation or through the
activities of a number of lieutenants who were glad to help him
. . . . [He] made it a point to see many Senators each day. He
rarely remained in his own seat, but was forever on the move,
oftentimes on the Democratic side. [His personality was such]
that he completely captivated men when he wanted to secure
their support for any purpose.\100\
---------------------------------------------------------------------------
\100\ Arthur Wallace Dunn, From Harrison to Harding, A Personal
Narrative, Covering a Third of a Century, 1888-1921, vol. 2 (New York:
G.P. Putnam's Sons, 1922), pp. 63-64.
Another contemporary of Senator Aldrich added: ``Many
reasons have been given for the almost singular power Mr.
Aldrich displays in his capacity as party manager in the
Senate, but the most that can be said about the secret of his
success is, perhaps, that he is a natural manipulator of men
and measures.'' \101\
---------------------------------------------------------------------------
\101\ Orlando O. Stealey, Twenty Years in the Press Gallery (New
York: Publishers Printing Co., 1906), p. 178.
---------------------------------------------------------------------------
The oligarchic system of party rule led by Senator Aldrich
``swiftly disintegrated'' by the early 1920s. ``It had been
severely strained for several years by the growing number of
insurgents in the party.'' \102\ In its place came Senates,
such as those of the 1950s, characterized by features such as
the diffusion of authority to senior lawmakers and conservative
committee chairs. In short, committees again became primary
centers of power, even with a formidable majority leader,
Lyndon Johnson, steering the Senate. Democrats controlled the
House and Senate during the 1950s, except for the 83d Congress
(1953-1955), when Dwight Eisenhower was President.
---------------------------------------------------------------------------
\102\ Randall B. Ripley, Power in the Senate (New York: St.
Martin's Press, 1969), p. 28.
---------------------------------------------------------------------------
The 1950s Senate
Three key features characterized the Senate of the 1950s.
First, an array of informal norms and folkways governed the
behavior of most Senators. Second, powerful committee chairmen,
called the ``inner club,'' dominated policymaking. Third,
Majority Leader Johnson exercised significant authority in
shaping the Senate's activities. Johnson is often viewed as the
most powerful majority leader in U.S. history, a post which
became institutionalized sometime during the early 20th
century.\103\
---------------------------------------------------------------------------
\103\ See Walter J. Oleszek, ``John Worth Kern: Portrait of a Floor
Leader,'' in Richard A. Baker and Roger H. Davidson, eds., First Among
Equals: Outstanding Senate Leaders of the Twentieth Century
(Washington, DC: Congressional Quarterly, Inc., 1991), pp. 7-37.
---------------------------------------------------------------------------
norms and folkways
Political scientist Donald Matthews wrote one of the most
important books about the 1950s Senate. His analysis stressed
the key role of the Chamber's unwritten norms and folkways in
shaping policymaking and the workings of the Senate.\104\ The
norms and folkways included:
---------------------------------------------------------------------------
\104\ Donald R. Matthews, U.S. Senators and Their World (New York:
Vintage Books, 1960).
---------------------------------------------------------------------------
Apprenticeship
New Senators should first spend time learning how the
Chamber functions before participating in committee and floor
matters in an active and sustained way. They should also give
deference to the Chamber's committee and party leaders.
Specialization
Senators should concentrate on the issues that come before
the committees on which they serve and on those matters that
affect their home State.
Legislative work
Senators should focus on their legislative work rather than
seek publicity. Senators were to be ``work horses'' not ``show
horses.''
Courtesy
Senators should treat all their colleagues respectfully and
not engage in personal attacks or criticisms of them.
Reciprocity
Senators should assist colleagues whenever that is
feasible. This norm includes a two-way exchange: Senators who
are aided are obliged to provide assistance in return.
Institutional patriotism
Senators should defend the prestige and prerogatives of the
Senate from those who would unfairly castigate its role and
work. They were ``expected to revere the Senate's personnel,
organization, and folkways and to champion them to the outside
world.'' \105\ (To be sure, there were Senators who ignored the
unwritten norms and folkways.)
---------------------------------------------------------------------------
\105\ Ibid., p. 102.
---------------------------------------------------------------------------
Procedural restraint
Senators should exercise restraint in use of their large
procedural prerogatives and employ them only in rare
circumstances.
Many of these norms no longer apply as they once did, but
at least one appears relevant in today's Senate:
apprenticeship. Most new Senators take some time to ``learn the
ropes'' of the Senate, with some seeking to observe an
apprenticeship period. In the latter camp can be well-known,
newly elected Senators, such as Hillary Clinton and Al Franken.
To avoid upstaging their less famous colleagues, both
deliberately and quietly went about the process of meeting
their colleagues and learning Senate practices and procedures.
Each, for example, paid their respects to Senator Byrd of West
Virginia, the longest serving Senator ever, deferred to for his
extensive knowledge of the Senate's history, traditions, and
procedures.
The other norms and folkways gradually went into decline
for several reasons, such as activist Senators who from the
start of their careers advocated action on their portfolio of
issues,\106\ and the transformation of Washington's policy
community with ``wall-to-wall'' interest groups devoting
considerable time and resources to persuading Senators to
become advocates for their cause.\107\
---------------------------------------------------------------------------
\106\ Michael Foley, The New Senate: Liberal Influence on a
Conservative Institution (New Haven, CT: Yale University Press, 1980).
\107\ Barbara Sinclair, The Transformation of the U.S. Senate
(Baltimore, MD: The Johns Hopkins University Press, 1989).
---------------------------------------------------------------------------
``the `inner club' ''
This phrase was popularized in a 1956 book written by
journalist William S. White titled Citadel: The Story of the
U.S. Senate. The club consisted mainly of senior Democratic
Senators from the South and senior Republican Senators from the
Midwest and New England, who dominated the inner workings of
the Senate. Everyone not in the inner club, ``an organism
without name or charter, without officers, without a list of
membership, without a wholly conscious being at all,'' was in
the outer club.\108\ The inner club, according to White,
dominated the Senate's culture and policymaking, often from
their perch as committee chairs. Majority Leader Johnson even
gave copies of Citadel to newly elected Senators, so they would
develop an understanding of what was expected of them, which
was to follow Speaker Sam Rayburn's quip--``to get along, go
along'' with the priorities of inner club members.
---------------------------------------------------------------------------
\108\ William S. White, Citadel, The Story of the U.S. Senate (New
York: Harper & Brothers, 1956), p. 84.
---------------------------------------------------------------------------
Prominent club members included Senators Richard Russell,
Russell Long, Styles Bridges, and Robert Taft. Lawmakers in the
inner club dominated the levers of power in the Senate. To be
sure, there were mavericks and outsiders who neither
genuflected to members of the inner club nor observed regularly
the norms and folkways identified by Professor Matthews.\109\
Noteworthy is that some scholars challenge the notion that
there was ``an all-powerful inner club,'' given the gradual
``progressive centralization of power in the hands of the
Majority Leader.'' \110\
---------------------------------------------------------------------------
\109\ Ralph K. Huitt, ``The Outsider in the Senate: An Alternative
Role,'' American Political Science Review, vol. 55, September 1961, pp.
566-575.
\110\ Nelson W. Polsby, ``Goodbye to the Inner Club,'' in Nelson W.
Polsby, ed., Congressional Behavior (New York: Random House, 1971), pp.
107, 109.
---------------------------------------------------------------------------
majority leader johnson (1955-1960)
Scores of analysts have examined the period when Lyndon
Johnson was the Senate's majority leader (1955-1960), perhaps
the most skilled majority leader ever. (Johnson also served as
minority leader during the 83d Congress, 1953-1955). Noted
historian Robert A. Caro, a Pulitzer Prize winner, has spent
much of his adult life writing multiple books that examine the
political career and roles of Johnson, including Master of the
Senate (2002), the third volume.\111\ In Caro's view, Majority
Leader Johnson was a legislative and political genius who knew
how to mobilize votes and make the Senate work by passing
legislation. Although critics said many of his bills were
``empty ships'' without much substance, they fail to consider
Johnson's achievements in promoting policy consensus by
reconciling the liberal northern and conservative southern
wings of the Democratic Party.\112\
---------------------------------------------------------------------------
\111\ Robert A. Caro, Master of the Senate (New York: Alfred A.
Knopf, 2002).
\112\ Foley, The New Senate, p. 23.
---------------------------------------------------------------------------
Johnson's mastery of the Senate was facilitated by three
factors: (1) a Republican was in the White House, Dwight
Eisenhower, which gave Johnson wider latitude to exercise
independent leadership; (2) he maintained close ties with
powerful leaders from the South, such as Johnson's mentor
Senator Richard Russell of Georgia, while he did not alienate
liberal Senators (Hubert Humphrey of Minnesota, for example)
and reached out to them for support; and (3) his shrewd
political intellect and instincts, focus on getting results,
and sheer drive to be the Senate's most ``powerful persuader.''
\113\ As Johnson told an aide, ``I do understand power,
whatever else may be said about me. I know where to look for
it, and how to use it.'' \114\ Johnson also knew how and when
to look to the conservative coalition for support in moving the
Senate's business. (Recall that the ``conservative coalition''
was an informal alliance between Republicans and southern
Democrats.)
---------------------------------------------------------------------------
\113\ Howard E. Shuman, ``Lyndon B. Johnson: The Senate's Powerful
Persuader,'' in Baker and Davidson, eds., First Among Equals:
Outstanding Senate Leaders of the Twentieth Century, p. 199. Also see
Ralph K. Huitt, ``Democratic Party Leadership in the Senate,'' American
Political Science Review, vol. 55, June 1961, pp. 333-344.
\114\ Caro, Master of the Senate, p. xx.
---------------------------------------------------------------------------
A leader with a domineering style, legendary arm-twisting
abilities, and parliamentary resourcefulness, Johnson could
often secure the legislative outcomes he wanted in the standing
committees (through allies on those panels) and in the Chamber
as well. As a liberal Democrat on the Steering Committee (the
committee assignment panel) said about Majority Leader Johnson:
he ``would come into the Steering Committee with his list, and
that would be it. He'd just tell the Steering Committee who
would be on [the committees]. [We] had no function at all.''
\115\
---------------------------------------------------------------------------
\115\ Norman Ornstein, Robert L. Peabody, and David W. Rohde, ``The
Changing Senate: From the 1950s to the 1970s,'' in Lawrence C. Dodd and
Bruce I. Oppenheimer, eds., Congress Reconsidered (New York: Praeger
Publishers, 1977), p. 11.
---------------------------------------------------------------------------
The Democratic leader also ``regulated carefully the timing
and pace of the floor debate, stalling for time when additional
votes were needed and driving the issue to a conclusion when
victory was assured.'' \116\ He limited opportunities for
lengthy debate--a fundamental feature of the Senate--by
specifying in unanimous consent agreements ``the precise time
that a vote would occur.'' \117\ Senator Johnson's power began
to wane after the 1958 midterm elections, however. Northern
Democratic Senators, many liberal and activist-minded, now
exceeded the number of southerners ``by 41 seats to 24 seats.''
\118\ One result: Johnson was more responsive to the reformist
goals of liberals in both parties, especially since he was
angling to win the 1960 Presidential nomination. In 1961, he
took the oath of office as Vice President of the United States.
---------------------------------------------------------------------------
\116\ John G. Stewart, ``Two Strategies of Leadership: Johnson and
Mansfield,'' in Nelson W. Polsby, ed., Congressional Behavior (New
York: Random House, 1971), p. 67.
\117\ Ibid., p. 68. Also see Smith, Call to Order, pp. 99-101.
\118\ Foley, The New Senate, p. 27.
---------------------------------------------------------------------------
The Individualist Senate (1961-1990)
The roots of the individualist Senate can be traced to the
late 1950s when junior Senators as well as several seasoned
lawmakers began to rebel against the seniority system and urge
rule changes that would facilitate enactment of civil rights,
labor, and other legislation. As a congressional scholar noted,
``the Senate transformed itself from an inward-looking,
committee- and seniority-dominated institution in which
influence and resources were unequally distributed to an
individualist, outward-looking institution with a much more
equal distribution of resources . . . . [Moreover, in] neither
the old nor the new Senate did party play a major role.'' \119\
In short, gone was the communitarian, small-town character of
the Senate of the 1950s with its norms, folkways, and
hierarchical structure. It was replaced by a system--still
prominent today--that granted wide opportunities to rank-and-
file Senators to influence virtually any policy area. As a
commentator noted, the Senate is ``increasingly a place where
it's easier for a single lawmaker to stop a bill in its tracks
than to get it passed by bringing others on board.'' \120\
---------------------------------------------------------------------------
\119\ Barbara Sinclair, ``Congressional Reform,'' in Julian E.
Zelizer, ed., The American Congress (Boston: Houghton Mifflin, 2004),
p. 631.
\120\ Rebecca Kaplan, ``Hatch as Hatch Can,'' National Journal, May
18, 2013, p. 35.
---------------------------------------------------------------------------
A number of external forces accelerated the transition to
an individualistic Senate. For example, interest group activity
surged in the Nation's Capital given the activism and expansion
of the Federal Government (the Great Society, for instance). As
James Q. Wilson, a political scientist, pointed out: ``Once
politics was about only a few things; today, it is about nearly
everything.'' \121\ New issues and problems emerged on the
agenda of Congress and the national government--affirmative
action, automobile safety, abortion, the Vietnam war, gasoline
lines, environmental protection, women's rights, and so on--
which motivated Senators to respond to their constituents, to
the importuning of lobbyists, and to the needs of the country
by, for example, introducing bills and holding hearings.
---------------------------------------------------------------------------
\121\ Quoted in Robert J. Samuelson, ``Suicidal Politics,'' The
Washington Post, April 11, 2011, p. A13.
---------------------------------------------------------------------------
A relatively closed and insular Senate became a more open,
permeable, and unpredictable policymaking institution. The
press and media increased its coverage and scrutiny of
Congress. The institution became a more visible and critical
center of action in numerous policy areas, including
legislative-executive conflicts over war powers and Federal
spending. Senators also acquired additional staff resources,
including access to experts in new legislative support units
(for example, the Congressional Budget Office, created in
1974). With more staff, Members had wider opportunities to
become engaged in substantive areas beyond the jurisdictional
domains of the committees on which they served. Legislative
staff also assumed more responsibility in the lawmaking process
given heightened demands on the time of Senators--fundraising,
campaigning, and meeting with constituents as well as dealing
with an array of complex issues in committee and on the floor.
As a result, professional staffers often took the lead in
negotiating policy differences with the aides of other
Senators, drafting legislation, acting as procedural advisers,
preparing reports, and so on.
other consequences of individualism
An analysis of the individualistic Senate by a
congressional journalist identified four other consequences of
the Senate's transition from a place where comradeship and
friendly relationships were commonplace to an institution of
semistrangers where ``individual rights, not community feeling,
is the most precious commodity.'' \122\ First, there is little
socializing among Senators. Members' schedules are simply too
replete with numerous meetings, fundraising, visiting with
constituents, or traveling back and forth to their States.
Without personal and social connections, trust is hard to
develop between and among Senators, and trust is essential to
the compromise-making process.
---------------------------------------------------------------------------
\122\ Alan Ehrenhalt, ``In the Senate of the '80s, Team Spirit Has
Given Way to the Rule of Individuals,'' Congressional Quarterly Weekly
Report, September 4, 1982, p. 2175.
---------------------------------------------------------------------------
Second, civility and courtesy declined with a resultant
uptick in acerbic words and criticisms of a personal nature.
The erosion of civility compounds the difficulty of reaching
consensus on issues and promotes partisan bickering. A GOP
Senator who voluntarily retired expressed dismay with the
atmosphere of the Senate. ``We've ratched up the violence of
our words. I don't like the milieu. Now it all [is about] who's
winners and who's the losers.'' \123\ Absent civility, it
becomes harder for Senators to achieve consensus on resolving
the Nation's problems.
---------------------------------------------------------------------------
\123\ James M. Perry, ``Moderate Republicans Look Like a Dying
Breed as Standard Bearers Forsake Acrimonious Senate,'' Wall Street
Journal, December 28, 1995, p. A8.
---------------------------------------------------------------------------
Third, Senators, like House Members, are constantly running
for reelection (the ``permanent campaign''), mindful that their
actions and votes are subject to intensive monitoring by
pressure groups, the media, and the attentive public,
particularly people who vote in party primaries. Vast sums of
money are spent by scores of groups, wealthy individuals, and
party organizations to fund attack-oriented campaigns, engage
in issue advocacy, energize supporters to vote on Election Day,
and, of course, to influence congressional decisionmaking.
Lawmakers, too, devote considerable time to ``dialing for
dollars.'' As a Senator explained: ``I don't worry about money
influencing our votes. I don't think that happens. But I worry
about the energy it takes. We're out there raising money all
the time. We don't sit down and talk to each other very much
anymore. We don't have time. I just don't know how people find
the time to think or reflect.'' \124\
---------------------------------------------------------------------------
\124\ Ibid.
---------------------------------------------------------------------------
Fourth, individual Senators obstructed the Senate with
scores of parliamentary maneuvers. ``There is today more power
in the hands of a single person, more leverage to impede the
process, than there used to be,'' exclaimed a Senator. ``We've
given far too much power to the impeders.'' \125\ Peer pressure
is often unable to get the impeders to stop their dilatory
actions. A Senator who often exploited Senate rules to
frustrate Chamber action either for substantive, political, or
campaign purposes explained: ``If I'm not the most popular guy
in the Senate--well, I can live with that.'' \126\
---------------------------------------------------------------------------
\125\ Ehrenhalt, ``In the Senate of the '80s,'' p. 2179.
\126\ Ibid.
---------------------------------------------------------------------------
individualism and majority leader mike mansfield
An observation about the individualist Senate is important
to underscore. The Senator who succeeded Lyndon Johnson as
party leader was Democrat Mike Mansfield of Montana, the
longest serving (1961-1977) majority leader in the Senate's
history. His actions and decisions facilitated establishment of
the individualistic Senate. In Mansfield's view, there was no
``inner club'' in the Senate, because every Senator had equal
rights and responsibilities. As he stated: ``[T]here's no
`inner club' in the Senate any more. That's the way it should
be. Nobody is telling anybody else what to do.'' \127\ A senior
Senate aide explained that Senator Mansfield's ``principal duty
was to maintain a system which permitted individual, coequal
senators the opportunity to conduct their affairs in whatever
ways they deemed appropriate.'' \128\
---------------------------------------------------------------------------
\127\ ``Why Congress Is In the Doghouse, Interview With the
Majority Leader,'' U.S. News & World Report, August 16, 1976, p. 27.
\128\ Stewart, ``Two Strategies of Leadership,'' p. 69.
---------------------------------------------------------------------------
Mansfield's restrained leadership style, in sharp contrast
to Johnson's assertive leadership approach, promoted the
individualism that remains a prime feature of today's Senate.
As congressional scholar Ross Baker concluded about the
Mansfield years: ``Much criticism of the modern Senate is, in
effect, a commentary on institutional features that emerged
during Mansfield's term as majority leader. The hyper-
individualism, the ability of willful or obstructionist members
to hold the institution hostage at times to their own petty
interests, the [enlargement] of Senate staff and their
assumption of unprecedented, even unwarranted, authority, are
all developments of [Senator] Mansfield.'' \129\ Added a
congressional scholar, ``[A]s the Mansfield era came to an end,
Senate individualism was reaching a fever pitch.'' \130\
Interviewed at age 96, Mansfield was asked for his view of
``the state of Congress in 2000.'' He said in part: ``There's a
lack of compatibility among and between members. There's an
individualism to an extent I never thought was possible.''
\131\
---------------------------------------------------------------------------
\129\ Ross K. Baker, ``Mike Mansfield and the Birth of the Modern
Senate,'' First Among Equals, p. 293. Also see Francis R. Valeo, Mike
Mansfield, Majority Leader: A Different Kind of Senate, 1961-1976
(Armonk, NY: M.E. Sharpe, 1999).
\130\ Steven S. Smith, The Senate Syndrome: The Evolution of
Procedural Warfare in the Modern U.S. Senate (Norman, OK: University of
Oklahoma Press, 2014), p. 118.
\131\ Dan Carney, ``Mansfield on Leadership, Teamwork and
`Individualism' in Congress,'' CQ Weekly, January 29, 2000, p. 164.
---------------------------------------------------------------------------
Mansfield's successor as party leader, Senator Byrd of West
Virginia, also catered to the individual needs and requests of
Members. One of his important jobs, he said, was to wait upon
and accommodate his partisan colleagues. ``I often say when I
am to fill out a form and the form says `occupation,' I should
put `slave.' '' Senator Byrd also called himself the
``mitigator'' for the ``individual ills and problems of
individual Members.'' \132\ To be sure, Majority Leader Byrd
(1977-1981; 1987-1989), one of the Senate's most accomplished
parliamentary experts ever, could play ``procedural hard ball''
if circumstances warranted that approach. Senator Byrd also
served as minority leader (1981-1987).
---------------------------------------------------------------------------
\132\ The first quote is from the Congressional Record, v. 126,
April 18, 1980, p. 8352. The second is found in the Congressional
Record, vol. 126, May 2, 1980, p. 9759.
---------------------------------------------------------------------------
The Polarized Senate (1990- )
Legislating in the modern Senate can be a difficult
enterprise given its emphasis on ``minority rule''--the right
of Senators to debate at length (the filibuster) and to offer
nonrelevant amendments. The Senate's procedural differences
with the ``majority rule'' House mean that bipartisanship is
usually more important to attain in the upper Chamber than in
the lower Chamber. Unless a broad bipartisan consensus exists
or there is a voting supermajority, enacting legislation or
approving nominations can often be an arduous and lengthy task.
To overcome obstructionism, a regular and routine occurrence,
is the cost today of doing legislative business. The
individualism that permeates the Chamber and--since the 1990s--
the sharper partisanship that pervades the Senate means that
bipartisan collaboration and compromise are much harder to
attain than previously. In short, the combination of heightened
individualism, sharper partisanship, and the Chamber's
permissive rules underscore the policymaking challenges that
confront the contemporary Senate.
One consequence is that the party leadership's influence
over policymaking is ascendant compared to the role of
committees. Majority party leaders are not reluctant to bypass
committee consideration of legislation or take the lead in
writing bills or amendments. Moreover, it is easier for them,
as well as for individual Members, to use available procedures
to circumvent committee consideration and place measures
directly on the legislative calendar. (There is no guarantee
that these measures will be taken up, however.) Worth mention
is that Senate Republicans, but not Democrats, impose term
limits on their Members--6 years as a chair and 6 years as a
ranking lawmaker--thus limiting their ability to accumulate the
authority and clout of committee leaders from earlier eras.
The ``little legislatures'' (committees) are not
unimportant, simply less important than the role of party
leaders. The leaders are in charge of legislating on most
measures or matters. Among other things, party leaders are
responsible for legislative strategy, the party's agenda and
message, fundraising, fostering party consensus and unity,
communications, and, importantly, winning or holding majority
control of their Chamber. In the judgment of one analyst, in
``the new political order, nothing is more important than
either winning or holding a majority . . . so anything that
prevents the other party from capturing or holding a majority
is justified, even necessary.'' \133\ Senator Byrd expressed
this sentiment in stronger language: ``Party! It doesn't
make any difference how many political corpses you trample
on or walk over to get your party on top. The object is to win
the next election. The object is to be able to say . . . `Our
party will be in control.' '' \134\ Added Senator Olympia Snowe
of Maine, ``Congress is becoming more like a parliamentary
system where everyone votes with their party and those in
charge employ every possible tactic to block the other side.''
\135\
---------------------------------------------------------------------------
\133\ Charlie Cook, ``Blocking the Vote,'' National Journal, July
26, 2014, p. 15.
\134\ Melissa Healy, ``Robert Byrd,'' Los Angeles Times, January
30, 1995, p. A12.
\135\ Kaiser, An Act of Congress, p. 381.
---------------------------------------------------------------------------
Many reasons and trends account for the uptick in
partisanship and the sharp ideological divide that
characterizes the contemporary Senate. Several of these
include:
partisan and ideological sorting
A long-term trend underway for many years has been the
partisan and ideological sorting that has occurred in each
party and in the country. ``Knowing whether a person is a
Republican or a Democrat today tells you far more about their
views on many issues than it did in previous eras.'' \136\ One
result is that bipartisan coalitions on major measures, common
during the post-World War II period, are hard to forge in the
absence of ideological overlap--conservatives and liberals in
both parties. One analyst dubbed the post-World War II period
``the age of bargaining,'' in which ``the two parties, both
representing ideologically diverse coalitions, regularly
reached agreements that blurred the differences between them.''
\137\ The Congresses of the bargaining era are largely
outliers. In most historical eras, Congress and the country
exhibited strong partisan and policy disagreements.
---------------------------------------------------------------------------
\136\ Shankar Vedantan, ``My Team vs. Your Team: The Political
Arena Lives Up to Its Name,'' The Washington Post, September 29, 2008,
p. A6. Political scientists, psychologists, and others have suggested
that ``our brains are hardwired for partisanship.'' They are engaged in
trying to understand ``what exactly makes us so vulnerable to
partisanship.'' See Brian Resnick, ``The Battle for Your Brain,''
National Journal, September 20, 2014, pp. 12-18. After reviewing the
literature on the ``political brain,'' a science journalist concluded:
``A large body of political scientists and political psychologists now
concur that liberals and conservatives disagree about politics in part
because they are different people at the level of personality,
psychology, and even traits like physiology and personality.'' David
Sherman and Leaf Van Boven, ``Why We Can't Just Get Along,'' Los
Angeles Times, September 25, 2014, online edition.
\137\ Ronald Brownstein, ``Then and Now,'' National Journal,
December 15, 2012, p. 8.
---------------------------------------------------------------------------
Consider the years leading up to the Civil War (recall the
severe beating of Senator Charles Sumner of Massachusetts
administered by the cane-wielding Representative Preston Brooks
of South Carolina); the late 19th and early 20th century splits
in Congress and the country between rural and urban and labor
and industrial interests; the clashes over the prohibition of
intoxicating liquors, which in 1919 was embedded as the 18th
Amendment to the Constitution and then repealed in 1933 by the
21st Amendment; the struggle for civil rights in the 1960s that
included the murders of national leaders, the assassination of
President John F. Kennedy, and riots in city streets; the anti-
Vietnam war movement of the 1970s, which included the shootings
of Kent State (Ohio) students protesting the war; or today's
strong public and partisan differences over immigration,
foreign policy, and the role of government, for example.
Today, the disagreements between the parties are so wide
and strong, a seemingly unbridgeable chasm on many issues
(Obamacare would be a prime example), that stalemate and
deadlock pervade Congress as well as relations between the
legislative and executive branches. Public officials even
suggest that legislative gridlock could threaten national
security if Congress cannot act to address national and
international emergencies, such as the threat of terrorist
attacks on the homeland. Pollsters have found widespread
pessimism in the country about the state of the Nation,
provoked by a number of factors that include the perception
that the Nation's governing institutions are in constant
gridlock. The pessimism of the public occurs because citizens
are ``reacting, in part, to the breakdown of the political
system, which leaves people quite rationally worried about
American decline and the Nation's diminishing ability to
weather [and deal with] crises.'' \138\
---------------------------------------------------------------------------
\138\ Cited in Dana Milbank, ``A Dying American Optimism,'' The
Washington Post, August 13, 2014, p. A19.
---------------------------------------------------------------------------
geographic and residential self-segregating
Studies have shown that like-minded individuals and
families prefer to live in or move to States (``red'' or
``blue,'' for example) and communities where people share
similar lifestyles, values, interests, and political
views.\139\ More and more people are living in ``landslide
counties'' that vote either Democratic or Republican. Living in
homogeneous communities reinforces peoples' shared political
beliefs and biases. As analysts have found, ``the country may
be more diverse than ever from coast to coast,'' but it is
``filled with people who live alike, think alike, and vote
alike.'' \140\ Or as a political pollster stated, ``If voters
are seeking an explanation for hyper-partisanship and
dysfunction, they ought to look down the street.'' \141\ Polls
even show that liberal and conservative voters ``would be
unhappy if their children married someone with a different
political viewpoint. The result isn't just polarized politics,
but an increasingly divided society.'' \142\
---------------------------------------------------------------------------
\139\ See Bill Bishop, The Big Sort: Why the Clustering of Like-
Minded Americans Is Tearing Us Apart (New York: Mariner Books, 2009).
One scholar found that in ``1960, 5 percent of Republicans and 4
percent of Democrats said they would feel `displeased' if their son or
daughter married outside their political party. By 2010, those numbers
had reached 49 percent and 33 percent.'' He concluded that ``partyism
is extending well beyond politics into people's behavior in daily
life.'' See Cass R. Sunstein, ``Partyism Now Trumps Racism,''
BloombergView, September 22, 2014, pp. 1, 3. This article can be found
at http://bloombergview.com/articles. Another study found that
Americans are ``self-sorting, not only along racial lines but also
along educational and income ones, particularly in our big cities.''
Important cultural consequences flow from this development. ``People
who live in ethnically diverse streets are less racially prejudiced
than individuals living in highly segregated areas and their increased
tolerance is due directly to the experience of a more integrated
society.'' Charles M. Blow, ``The Self-Sort,'' The New York Times,
April 12, 2014, p. A19. Worth noting is that a free smartphone app
(BuyPartisan) allows supermarket shoppers to purchase products that
comport with their political beliefs by learning ``the political
leanings of the makers of supermarket items.'' The developer of the
smartphone application said, ``We're trying to make every day election
day for people.'' See Rebecca Bratek, ``Taking Politics Shopping,'' Los
Angeles Times, August 25, 2014, online edition. In the view of an
election analyst, ``Politics hangs on culture and lifestyle more than
policy.'' See Laura Meckler and Dante Chinni, ``How Where We Live
Deepens the Nation's Partisan Split,'' Wall Street Journal, March 21,
2014, p. A10.
\140\ David Wasserman, ``Parallel Universes,'' National Journal,
December 15, 2012, p. 18.
\141\ Sheryl Gay Stolbert, ``You Want Compromise? Sure You Do,''
The New York Times, August 14, 2011, p. SR5.
\142\ Nate Cohn, ``Polarization: It's Everywhere,'' The New York
Times, June 12, 2014, p. A3.
---------------------------------------------------------------------------
Tellingly, people who live in homogeneous neighborhoods are
more engaged in political activities than those who reside in
diverse neighborhoods.\143\ ``Political activism is much easier
when you're surrounded by like-minded others,'' said a
political scientist.\144\ These are the individuals who often
contribute to campaigns, vote in primaries, work on campaigns,
and look askance at compromise. People in heterogeneous
communities may steer clear of discussions of politics to avoid
provoking anger and hard feelings with their friends and
neighbors.
---------------------------------------------------------------------------
\143\ Stolbert, ``You Want Compromise? Sure You Do,'' p. SR5.
\144\ Ibid.
---------------------------------------------------------------------------
partisan media
There are so many partisan and dueling 24/7 media outlets
that individuals can tune in to liberal or conservative
channels where contrary views are neither exposed nor
considered and where compromise is disparaged, sometimes by
shrill commentary. To attract a wide audience, these media
outlets are in the business of amplifying party and policy
disagreements. Typically, people select media programs that
bolster and reinforce their views; they do not routinely sample
a variety of news sources that expose them to contrary
political perspectives. And ``many of those drawn to the most
partisan shows have an outsized impact on politics, talking to
their friends and neighbors about public affairs and signing up
for campaign work.'' \145\
---------------------------------------------------------------------------
\145\ Michael Kranish, ``The Role of Partisan Media,'' The Boston
Globe, October 6, 2013, p. 8.
---------------------------------------------------------------------------
interest groups and ``think tanks''
There are numerous interest groups largely aligned with
each party that monitor the work, ideological purity, and votes
of Members. If Members deviate from the groups' programs and
preferences, the lawmakers face the threat of a primary
challenge from candidates more liberal or more conservative
than they are. ``In a partisan atmosphere,'' remarked a GOP
Senator, ``it's hard to help the other side without being
accused [by well-financed ideological groups] of aiding and
comforting the enemy.'' \146\ On the other hand, advocacy
groups can enable individual lawmakers to exercise outsized
influence in Congress if these Members are able to energize and
mobilize outside groups and grassroots supporters to back their
legislative causes and strategies. As the leader of a
conservative advocacy group said about two Senate Republicans:
``They are recognizing [that] political power today doesn't lie
in Washington, it lies around the country.'' \147\
---------------------------------------------------------------------------
\146\ Darren Samuelsohn, Politico, June 28, 2010, p. 10.
\147\ Susan Ferrechio, ``Political Power Isn't Just for Party
Leaders Anymore,'' WashingtonExaminer.Com, September 30, 2013, p. 10.
---------------------------------------------------------------------------
As for think tanks, they are part of elaborate
infrastructure of groups and organizations that support the
agenda and goals of each party. On the liberal side, for
instance, is the Center for American Progress; on the
conservative side is The Heritage Foundation. An objective of
these think tanks is to prepare scholarly reports that advocate
for and support the partisan agenda of the Democratic or
Republican Parties. As a founder of a partisan think tank said:
``This is your [party's] objective. Now go do the analysis.''
\148\ Little surprise that ``facts'' are often in strong
dispute between the two parties, which compounds the difficulty
of resolving policy differences.
---------------------------------------------------------------------------
\148\ Bryan Bender, ``Many D.C. Think Tanks Now Players in Partisan
Wars,'' The Boston Globe, August 11, 2013, p. 5.
---------------------------------------------------------------------------
electoral volatility
Today's Senate is subject to rather frequent shifts of
party control compared to the 26 years that Democrats held the
Senate (1955-1981). For example, for the period from the 103d
Congress (1993-1995) to the 113th Congress (2013-2015),
Democrats have been the majority party six times and
Republicans five times, often with rather slim majorities. The
constant struggle to hold or win power means that there is
little incentive for whichever party is in the minority to work
with the majority party to enact consequential legislation. If
major measures regularly pass with bipartisan majorities, that
might indicate to many voters that ``staying the course'' is
what's required at election time rather than ``it's time for a
change.'' According to one analyst, ``Narrow majorities
inherently encourage partisan conflict. When control is always
within reach, the minority party loses the incentive to help
mint legislative accomplishments that fortify the brittle
majority.'' \149\
---------------------------------------------------------------------------
\149\ Ronald Brownstein, ``The Volatile Senate,'' National Journal,
September 20, 2014, p. 4.
---------------------------------------------------------------------------
benefits of party polarization
Some analysts suggest that the distinct and widely known
views of the two parties enable voters to hold each of them
accountable for their actions or inactions. Not too long ago,
during the 1950s and 1960s, for example, people could say that
there wasn't a dime's worth of difference between the two
parties. That is not the case today. Voters have a real choice
in choosing the party and the candidates that best represent
their policy preferences and values. Then-Representative
Richard Cheney (1979-1989) said as a minority Member:
``Polarization often has very beneficial results. If everything
is handled through compromise and conciliation, if there are no
real issues dividing us from Democrats, why should the country
change and make us the majority?'' \150\ Moreover, too many
compromises can produce inadequate laws that reflect the lowest
common denominator of legislating.
---------------------------------------------------------------------------
\150\ Quoted in Fred Barnes, ``Raging Representatives,'' The New
Republic, June 3, 1985, p. 9.
---------------------------------------------------------------------------
Polarization has other real and potential benefits. It can
promote voter turnout. Partisan stalemates can prevent mistakes
that could occur if bills were passed without adequate
deliberation and amendment opportunities for each party. In
short, legislative deadlock may be the best option absent
consensus in Congress and the country over how to address
consequential issues and problems.\151\
---------------------------------------------------------------------------
\151\ See W. Lee Rawls, In Praise of Deadlock: How Partisan
Struggle Makes Better Laws (Baltimore: The Johns Hopkins University
Press, 2009).
---------------------------------------------------------------------------
A compelling counterpoint is that in a ``party-polarized
chamber where the Senate minority party demonstrates the sort
of disciplined opposition that one sees in parliamentary out
parties, a Senate majority has extraordinary difficulty either
recruiting bipartisan support or governing alone.'' \152\ The
extraordinary difficulty occurs in large measure because of the
Senate's procedural rules. Every Senator is well positioned to
stymie Senate decisionmaking. For example, the Senate has only
one formal rule (Rule XXII) to end debate. It must invoke a
procedure called cloture (closure of debate) to bring debate
and voting to an eventual end. However, cloture requires 60 of
100 votes to invoke for most measures and matters, and it is a
time-consuming process that can take several days. Generally,
the Senate functions best when every Member agrees by unanimous
consent to a procedural framework for considering measures and
matters. Two words--``I object''--block that approach, however.
---------------------------------------------------------------------------
\152\ Frances E. Lee, ``Senate Deliberation and the Future of
Congressional Power,'' Political Science & Politics, vol. 43, April
2010, p. 227.
---------------------------------------------------------------------------
beyond ideology: the ``reboot''
Important to note is that the struggle between the parties
involves more than ideological differences, because not all
issues arouse the ideological passions of Senators.\153\ For
example, the Senate in mid-March 2014 enacted legislation by a
96 to 2 vote to provide additional funds for pediatric medical
research.\154\ The pediatric measure was part of a deliberate
bipartisan strategy (called the ``reboot'') by the bipartisan
party leaders to end Senate gridlock, pass legislation, and
demonstrate that the Senate can govern during a time when
lawmakers regularly employ their procedural prerogatives to
frustrate Senate action on legislation and nominations. The
reboot meant that measures that ``had bipartisan authorship,
had already gone through committees, and had the support of the
committees' chairmen and ranking Republicans'' would be
scheduled for floor action.\155\
---------------------------------------------------------------------------
\153\ ``Beyond Ideology'' is the title of a book by Professor
Frances E. Lee of the University of Maryland. Her study underscores
that every vote in the Senate is not ideologically based. See Frances
E. Lee, Beyond Ideology: Politics, Principles, and Partisanship in the
U.S. Senate (Chicago: University of Chicago Press, 2009).
\154\ Congressional Record, v. 160, March 13, 2014, p. S1617.
\155\ Jonathan Weisman, ``Process `Reboot' Aims to End Senate
Gridlock,'' The New York Times, March 3, 2014, p. A15. Also see Ed
O'Keefe and Paul Kane, ``From Unlikely Pair a Plan to Restore
Tradition--and Bipartisanship,'' The Washington Post, March 11, 2014,
p. A5.
---------------------------------------------------------------------------
The reboot was an attempt to return to the ``regular
order.'' This ambiguous and variable term generally means that
measures are introduced and referred to the appropriate
committee, voted out by a majority on the committee, and then
brought to the floor under an open amendment and deliberative
process that also ensures real minority party participation.
The leaders of the reboot initiative wanted to demonstrate to
newcomers how the Senate is expected to legislate, without
being regularly embroiled in procedural gridlock and policy
stalemate. As Senator Barbara Mikulski, the chair of the
Appropriations Committee and a principal advocate of the reboot
approach, stated: ``This is one of the first times in a couple
of years where we have had an open amendment process, and in
some ways we're getting adjusted to how that actually works.''
\156\ The bipartisan reboot initiative, however, lasted only a
few weeks.
---------------------------------------------------------------------------
\156\ Quoted in a speech by Senator Charles Grassley, Congressional
Record, March 13, 2014, p. S16745. Also see Tamar Hallerman, ``Tapping
Back in to Regular Order,'' CQ Weekly, April 7, 2014, pp. 538-545.
---------------------------------------------------------------------------
the return of partisan warfare
The two parties soon focused on their struggle either to
hold power or to win it back. A consequence of this political
reality is that numerous issues are left unresolved or unacted
upon. If legislation is enacted into law, such as the
Affordable Care Act, the opposition party may try to foil its
effective implementation, work to repeal and replace the
statute, or challenge it in the Federal judiciary or the court
of public opinion. According to a political strategist, the two
parties are ``more interested in pursuing partisan, short-term
advantage than they are in building consensus and solving
national problems that require immediate action.'' \157\
---------------------------------------------------------------------------
\157\ Douglas E. Schoen, ``A Country on the Wrong Track,'' The
Washington Times, August 11, 2014, p. B1.
---------------------------------------------------------------------------
The partisan tactics available to each party are many, as
pointed out by political scientist Frances E. Lee. ``In seeking
to advance their collective interests of winning elections and
wielding power, legislative partisans stir up controversy. They
impeach one another's motives and accuse one another of
incompetence and corruption, not always on strong evidence.
They exploit the floor agenda for public relations, touting
their successes, embarrassing their opponents, and generally
propagandizing for their own party's benefit. They actively
seek out policy disagreements that can be politically useful in
distinguishing themselves from their partisan opponents.''
\158\ Perhaps no surprise, then, that this partisan behavior
provokes procedural ``hard ball'' tactics. In effect, recent
Senates have witnessed the emergence of a ``new procedural
normal.''
---------------------------------------------------------------------------
\158\ Lee, Beyond Ideology, p. 4.
---------------------------------------------------------------------------
the emergence of a ``new procedural normal''
There is arguably a ``new procedural normal'' in the
Senate, which coexists in uneasy tension with the regular
order. This procedural duality is something akin to the
``layering'' of the landmark 1974 Budget Act atop the
traditional authorization and appropriations processes.\159\ It
also emulates a ``two track'' scheduling system in the Senate:
measures that enjoy broad support are taken up during a session
day on one track (in the morning, for example) and measures
subject to dilatory tactics are slated for consideration on the
second track (in the afternoon, for instance).
---------------------------------------------------------------------------
\159\ House and Senate rules create a distinction between
authorizations and appropriations. Authorizations establish, continue,
or modify Federal programs and entities, and they allow them to be
funded. Appropriations (spending bills) fund authorized Federal
agencies and programs. For various reasons, such as an overly
fragmented legislative budget process, Congress passed the 1974 Budget
Act. Among other things, it created House and Senate Budget Committees
that usually prepare an annual concurrent budget resolution that, if
adopted, establishes Congress' framework for considering revenue,
spending, and budget-related legislation. However, Congress did not
institute this fiscal reorganization by abolishing the authorization
and appropriations processes. Such an attempt would have pitted the
most powerful committees and Members against one another and
jeopardized any chance of realizing budgetary reform. Instead, Congress
added another budget ``layer'' to those already in place in the House
and Senate.
---------------------------------------------------------------------------
The origins of the new procedural normal stem from the
willingness of Members and the two parties to use their
procedural prerogatives to the limit to advance their
legislative and political goals. A gridlocked Senate might be
the opposition's goal. The majority's failure to pass
legislation is the minority's success. On the other hand, the
majority leader's job is to win Senate action on the party's
agenda. The party leader also wants to protect his electorally
vulnerable Members from casting tough votes on campaign-
inspired amendments that challengers can use in attack ads
against incumbents.
Thus, the perception or reality of minority obstructionism
provokes parliamentary maneuvers by the majority leader that
typically restrict the minority's amendment and debate
opportunities. These actions give rise to angry responses from
the opposition. They charge that the majority party's tactics
are destroying the Senate. ``Throughout its history, all
senators have had two essential opportunities to participate:
the right to offer amendments to legislation and the right to
unlimited debate,'' explained a senior GOP Senator. ``The
current Senate majority has attacked both of these rights
relentlessly.'' \160\
---------------------------------------------------------------------------
\160\ Orrin G. Hatch, ``Destroying the Senate--and Our Liberties,''
The Washington Times, August 4, 2014, p. B1.
---------------------------------------------------------------------------
Three principal motivations trigger these back-and-forth
partisan and procedural clashes. First, Democrats want to make
laws by achieving favorable action on their own and President
Obama's priorities. Republicans often want to stop Democratic-
preferred priorities from becoming laws because they strongly
disagree with them. Second, inaction also works to the GOP's
electoral advantage as a campaign theme against the ``do
nothing'' Democratic Senate. Moreover, the next election could
make the minority the majority party. In that case, many of the
former majority party's proposals would simply be ignored or
rejected out of hand.
Third, the Senate has a long tradition of allowing
extensive debate and permitting nonrelevant amendments. From
the majority leader's perspective, opposition party Senators
want an open amendment process to force political votes,
embarrass the majority party, waste the Senate's time, and
derail the legislation. The majority leader often states that
he would agree to negotiate a reasonable number of relevant
amendments to legislation. He says, however, that he does not
get much help from the minority leadership in reaching
agreements to process legislation because of strong disputes
within that party.\161\ Even if minority Members have the
chance to offer a number of amendments to pending legislation,
asserts the majority leader, many in the opposition still vote
against the bill on final passage.
---------------------------------------------------------------------------
\161\ Manu Raju and Burgess Everett, ``Reid Defends Leadership of
the Senate,'' Politico, March 6, 2014, p. 31.
---------------------------------------------------------------------------
Senate Republicans view things differently. They see a
dramatic erosion of the right of Senators to offer a reasonable
number of amendments to legislation, including nonrelevant
amendments. They dislike intensely the idea that the majority
leader acts like a ``one-person House Rules Committee,''
preclearing only certain GOP amendments for floor action.
Republicans frequently remind the majority leader that the
Senate was designed to act slowly and deliberately, practices
that allow the views of the minority Members and the people
they represent to be heard rather than ignored. GOP leaders
also stress that no change in Senate rules is required to make
the Senate work in a more collegial and productive fashion.
``This does not require a change of rules,'' remarked Senator
Lamar Alexander, echoing the sentiment of GOP leader Mitch
McConnell. ``This requires a change of behavior--some on our
part on this side of the aisle, but a great deal of behavior''
on the part of the majority leader, who sets the Senate's
agenda.\162\
---------------------------------------------------------------------------
\162\ Congressional Record, v. 160, January 8, 2014, p. S113.
---------------------------------------------------------------------------
This clash of views reflects an age-old source of
procedural tension in the Senate: how best to protect the
traditional right of the minority (an individual, a small
group, or the minority party) to debate and amend legislation
while ensuring the right of the majority to decide and vote on
measures and matters. In the view of Senator Charles Schumer,
two things are required to get the Senate back to the art of
legislating. ``One, an ability to offer amendments. But second,
an ability to vote on final passage, have an up-or-down vote on
final passage once those amendments are disposed of one way or
the other.'' \163\ Minority party Members view matters
differently. ``Today, it is, shut up, sit down, don't offer
amendments,'' stated Senator Dan Coats. The Senate has become
the ``world's least deliberative body, not the most
deliberative body.'' \164\ As another Senator exclaimed: ``If a
Senator cannot offer an amendment, why vote to cut off debate
and go to final passage?'' \165\
---------------------------------------------------------------------------
\163\ Ibid., January 14, 2014, p. S303.
\164\ Ibid., May 14, 2014, p. S3008.
\165\ Congressional Record, vol. 156, December 21, 2010, p. S10855.
The Senator was Arlen Specter of Pennsylvania.
---------------------------------------------------------------------------
Senator Schumer's aspirations are hard to realize given
acrimonious partisanship, divided government, and the
exploitation of the Senate's permissive rules by each party.
For the majority, this often means restricting the minority's
ability to offer nonrelevant amendments. For the vote-short
minority, it can mean using a panoply of procedures, such as
threatening or using the filibuster, to impede or prevent
decisionmaking. One consequence of this parliamentary dynamic
is the emergence of a new procedural normal that has reshaped
the upper House's governance in significant ways. Among its
more prominent features, in no special order, are these six:
\166\
---------------------------------------------------------------------------
\166\ For more detail on these procedures, see Walter J. Oleszek,
Congressional Procedures and the Policy Process, 9th ed. (Washington,
DC: Sage, 2014).
---------------------------------------------------------------------------
Filling the amendment tree
By precedent, the majority leader has the right of first
recognition if no Senator is holding the floor. The recognition
prerogative enables the majority leader to offer amendment
after amendment until all eligible amendments based on Senate
precedent have been offered to a bill. At that point, the
amendment process is ``frozen.'' Filling the tree by the
majority leader has surged in recent years to prevent the
minority from offering political message amendments that could
cause electoral grief for majority Members up for reelection.
Genuine efforts to improve the substance of legislation through
amendments are also foreclosed by this tactic.
Budgeting
In recent years, Congress has been unable to enact what was
once routine: the 12 annual appropriations (spending) bills
funding the government by the start of a new fiscal year.
Delays are common because of conflicts over spending for
various programs and priorities. The result: the Federal
Government frequently operates on continuing resolutions,
sometimes for only a few weeks at a time, that keep the
government funded until individual spending bills or an omnibus
appropriations measure is crafted that might be composed of
several unacted-upon appropriations measures.
Conference committees
Once called the ``third house of Congress,'' a conference
panel--composed of House conferees and Senate conferees--was
typically created ad hoc from members of the committees of
jurisdiction to resolve bicameral differences on legislation
when the House and Senate passed dissimilar versions of the
same bill. Use of conference committees has declined over the
years in large measure because their creation can be blocked in
the Senate by extended debate. Moreover, when the production of
laws is low, as in the 113th Congress (2013-2014), there is
little need to create these panels.
Cloture votes
There has been a marked increase in the number of cloture
votes. For instance, they surged from 61 in the 107th Congress
(2001-2003) to 112 in the 110th Congress (2007-2008).\167\ Part
of the explanation for the increase is the coordinated and
orchestrated use of partisan filibusters by the minority
leadership rather than, as before, individual Senators engaged
in prolonged debate. For his part, the majority leader often
files cloture if there is an objection made when he offers a
debatable motion to bring a measure to the floor. GOP Senators
complain that cloture is filed even before debate has begun.
Moreover, they object to the majority leader's requests to
bring legislation to the floor under conditions that prevent
Republicans from offering relevant and nonrelevant amendments
of their choosing to legislation. To be sure, the majority
leader strongly defends his management of the Senate and
laments the unwillingness of the minority to engage in
negotiations with him.\168\
---------------------------------------------------------------------------
\167\ According to Majority Leader Reid, Minority Leader McConnell
has ``orchestrated 442 filibusters since Obama took office.'' McConnell
disputes that number citing Reid's erroneous methodology: counting the
filing of cloture motions as equivalent to filibusters. See Jonathan
Martin, ``Kentucky Derby,'' The New York Times Magazine, August 31,
2014, p. 40.
\168\ Manu Raju and Burgess Everett, ``Reid Defends Leadership of
the Senate,'' Politico, March 6, 2014, p. 1.
---------------------------------------------------------------------------
The 60-vote Senate
Majority votes have traditionally been common in the Senate
to pass measures or matters, except for those supermajority
requirements specified in the Constitution, laws, or Senate
rules. Today, there is a new normal: 60 votes are required for
enacting virtually all types of measures. It has become an
institutionalized norm, replacing the majoritarian standard.
The usual practice is for the 60-vote requirement to be
specified in unanimous consent agreements for the enactment of
measures and amendments. The new voting standard serves the
interests of both parties: the majority is assured a direct
vote in its policy alternative and a unified minority with 41
or more votes can prevent adoption of proposals they dislike.
The ``nuclear option''
On November 21, 2013, the Senate adopted a historic new
Senate precedent that established majority cloture--rather than
Rule XXII's requirement of 60 votes--to end filibusters on
executive and judicial nominees, excepting only the Supreme
Court.\169\ In the Senate, a precedent can be established by
majority vote when the Senate overturns a ruling of the
Presiding Officer. Once created, precedents trump formal Senate
rules. In this instance, the nuclear option had the effect of
``amending'' the supermajority provision for cloture in Rule
XXII without changing the text of that rule. Tellingly, a
higher 67-vote requirement is imposed by Rule XXII to end
filibusters on proposals to amend Senate rules. ``Amending by
precedent'' bypasses that requirement entirely and accomplishes
what amounts to rules changes by majority vote. Senator Reid
employed the controversial so-called nuclear option because he
was frustrated that Republicans were undermining the Senate's
constitutional ``advice and consent'' responsibility by
filibustering President Obama's executive and, particularly,
judicial branch nominees. Party leaders have long known about
the nuclear option, and sometimes employed it on comparatively
less consequential matters, but only in the polarized Senate
was it actually used by the majority party in a carefully
orchestrated process. The effect of the nuclear option was
twofold: it increased significantly Senate approval of the
President's nominees, and it provoked procedural retribution by
the GOP.\170\
---------------------------------------------------------------------------
\169\ On November 21, 2013, Majority Leader Reid raised a point of
order that ``the vote on cloture under rule XXII for all nominations
other than for the Supreme Court of the United States is by majority
vote.'' For the procedural details associated with the establishment of
the new authoritative precedent, see Congressional Record, vol. 159,
November 21, 2013, pp. S8416-S8418.
\170\ Burgess Everett, ``How Going Nuclear Unclogged the Senate,''
Politico, August 22, 2014, p. 2. Worth mention is a procedure called
``reconciliation''; it was adopted as part of the landmark 1974 Budget
Act. Its purpose is to bring existing law into conformity with the
current budget resolution. Procedurally, reconciliation is of especial
importance in the Senate because reconciliation measures are treated
differently than are other bills and amendments under terms outlined in
the 1974 Budget Act. These measures, and amendments thereto, cannot be
filibustered, amendments must be germane, and passage requires a
majority. It is not surprising that proposals, such as various
provisions of the Affordable Care Act, are sometimes attached to
filibuster-proof reconciliation bills.
---------------------------------------------------------------------------
To govern the contemporary Senate means that extraordinary
procedures are often used by the majority party if legislation
is to have a chance to become public law. In response, the
minority party castigates the majority for its untoward actions
and employs its formidable parliamentary resources to frustrate
the majority's actions. When delay and stalemate result, both
parties use the media to try to win the ``blame game'' in the
court of public opinion. To be sure, each party accuses the
other of blocking measures by abusing their parliamentary
prerogatives.
Among the consequences of partisan procedural maneuvers and
counterresponses are an emphasis on political messaging and
campaigning by legislating; an inability to address serious
national problems; popular opinion ratings for the legislative
branch in the single digits or low teens; and a decline of
trust among lawmakers. In the view of former Senate Majority
Leader Tom Daschle (2001-2002), ``Because we can't bond, we
can't trust. Because we can't trust, we can't cooperate.
Because we can't cooperate, we become dysfunctional.'' \171\
---------------------------------------------------------------------------
\171\ David Rogers, ``The Lost Senate,'' Politico, October 9, 2009,
p. 14. Also see Norm Ornstein, ``Trust Is Not Enough,'' National
Journal Daily, October 1, 2014, pp. 9-10.
---------------------------------------------------------------------------
VII. Summary Observations
Three summary observations are useful to end with and each
will be discussed in separate parts. The first reviews several
of the concerns commonly made about the current era of sharper
partisanship. The second focuses on the various types of
internal and external changes that have been proposed to
ameliorate the conditions that have given rise to the party
polarization that affects governance. The third part suggests
that given the Nation's constitutional system of separate
institutions sharing and competing for power, and the features
of the conditional party government model, it is almost
inevitable that Congress will experience variable degrees of
legislative gridlock and stalemate. After all, one job of
Congress is to stop bad ideas from being law. Gridlock to one
Member may be viewed as success to another.
Consequences of Polarization
Congressional change reveals that regular order in
lawmaking is a flexible construct. Today, it is common in both
Chambers for lawmakers to harken back to the regular order of
the ``good old days,'' the so-called ``textbook Congress'':
committee review of measures, adequate floor debate and
amendments by both parties, and so on.\172\ To be sure, the
textbook or conventional model of lawmaking has been followed
to varying degrees in each of the different House and Senate
eras. But as Majority Leader Reid replied to a Member praising
the virtues of the textbook approach, ``[T]hat was then, this
is now.'' \173\
---------------------------------------------------------------------------
\172\ See Kenneth A. Shepsle, ``The Changing Textbook Congress,''
in John E. Chubb and Paul E. Peterson, eds., Can the Government Govern?
(Washington, DC: The Brookings Institution, 1989), pp. 238-266.
\173\ Congressional Record, vol. 159, November 19, 2013, p. S8180.
---------------------------------------------------------------------------
And ``now'' in both Chambers means that legislating by
committee is often minimized or bypassed, with the top party
leaders in each Chamber taking the lead in crafting party-
preferred priorities. Debate and amendments are commonly
limited in both Chambers, often to protect vulnerable lawmakers
from casting tough votes and to prevent the opposition from
offering proposals that undermine the priorities of the
majority party. Conference committees are seldom convened, in
part because of bicameral stalemates on legislation. Governing
often occurs by brinksmanship with Congress lurching from one
crisis to another. Legislative action on major issues is often
postponed. Any of the 12 appropriations bills to fund the
government are seldom enacted by the start of the fiscal year
(October 1). Forging compromise on many key bills is sometimes
impossible to achieve when many Members view negotiations as a
sellout and a violation of their principles and their promises
to constituents.\174\
---------------------------------------------------------------------------
\174\ Former House GOP leader (1981-1994) Robert Michel of Illinois
made this observation about principles and compromises: ``[Y]ou just
can't go around shouting your principles, you have to subject those
principles to the test of open debate against those [who] don't share
those principles.'' He added: ``But true debate is not principled
unless the `Golden Rule' is applied, which simply means that you treat
your fellow Members the same way you want to be treated.'' Ed O'Keefe
and Philip Rucker, ``Tom Foley Remembered, as His Colleagues Beg for
Civility,'' The Washington Post, October 30, 2013, p. A3.
---------------------------------------------------------------------------
A consequence of all this is that other institutions--the
Supreme Court, the Federal Reserve, the States, and Federal
agencies--begin to make decisions that arguably should be made
by Congress. In his 2014 State of the Union Address, President
Obama said if Congress gridlocked on his agenda, he would
simply bypass the legislative branch and use his executive
powers to make policy. ``America does not stand still--and
neither will I,'' he said. ``So wherever I can take steps
without legislation to expand opportunity for more American
families, that's what I'm going to do.'' The President said
that he would use the ``pen and phone'' to advance his agenda
(Executive orders and signing statements, for example), and he
has, much to the consternation of many lawmakers in both
Chambers and parties. As policymaking authority moves away from
its important place in Congress to other institutions, many of
which comprise unelected officials who operate with little
transparency and accountability, then representative government
of the people, by the people, and for the people is eroded.
Unknown is how long the current extremely partisan House
and Senate and the polarized, sorted electorate might remain in
place. As a political scientist pointed out, ``Voters have got
better sorted by party; parties have got better sorted by
ideology; and parties have got more ideological.'' \175\
Another political scientist contends that, today,
``partisanship, ideology, and issue preferences go together in
a way that they did not in the mid-20th century. While issues
and ideology used to crosscut the partisan distribution [for
example, many supporters and opponents of civil rights in the
1960s were in the Democratic Party], today they reinforce it.''
\176\ It is impossible to predict whether these polarizing
conditions are temporary, semipermanent, or permanent. On the
other hand, it is possible to predict with certainty that, as
President John F. Kennedy stated in his 1962 State of the Union
Message to Congress: ``The one unchangeable certainty is that
nothing is unchangeable or certain.''
---------------------------------------------------------------------------
\175\ Jill Lepore, ``Long Division,'' The New Yorker, December 2,
2013, p. 76.
\176\ Quote is from political scientist Morris Fiorina in Suzanne
Weiss, ``A Peak of Partisanship,'' State Legislatures, July/August
2014, p. 19.
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Congress and Change
If legislative change is inevitable, at some point a
different congressional context or dynamic will surely emerge,
perhaps driven by an electorate upset with the congressional
status quo or the emergence of new social, technological,
economic, and political conditions. Major legislative change is
regularly triggered by developments in the larger political
system. Given public and Member interest in change, there is no
shortage of options to strengthen Congress' capacity to address
the Nation's problems, often by minimizing the forces and
processes that ostensibly contribute to gridlock. A few
examples of external and internal options illustrate the nature
of the suggestions. Important to note is that many of these
reform ideas are unlikely to occur for various reasons--
difficulty of achievement, uncertainty and skepticism about
their effectiveness, or scant support in Congress and the
country.
external changes
One set of options involves expanding the composition of
the electorate, for example, by increasing the incentives for
people to vote in primary and general elections. A key reason:
political professionals for both parties typically work to turn
out their supporters and suppress those who would vote for the
opposition. Partisan interest groups work ``to keep
independents, swing voters and occasional voters home . . . .
They would like nothing better than to have elections
determined by whichever side can muster more of its true
believers.'' \177\ Changing the electorate might work to
alleviate this partisan reality. One proposal is to follow the
mandatory voting model of Australia: require registered voters
to pay a fine if they do not vote or provide a reason for not
doing so (illness, for example). After decades of experience,
Australia has a ``turnout rate of more than 95 percent,'' with
about 3 percent opting to vote for ``none of the above.'' \178\
A related alternative to expand the electorate is to make
voters eligible to win a cash lottery: ``Vote and You Could Win
Thousands!'' The chair of the Ethics Commission of Los Angeles
City has suggested this approach as a way to increase voter
turnout.\179\ On the other hand, encouraging people to vote by
offering them a chance to win a lottery has downsides. For
example, this proposal might lure to the polls the most
uninformed and uninterested individuals.\180\ Other ways to
encourage more people to vote might be to make election day a
Federal holiday, promote weekend voting, or encourage the
States to consider innovative options for people to cast their
votes.\181\
---------------------------------------------------------------------------
\177\ Opinion, ``5 Reasons the Midterms Matter,'' USA Today,
September 2, 2014, p. 6A.
\178\ Thomas E. Mann and Norman J. Ornstein, It's Even Worse Than
It Looks (New York: Basic Books, 2012), p. 141. Chapters 4 through 7 of
this book present an array of electoral, political, and institutional
reforms.
\179\ Interview with Nathan Hochman, the chair of the Los Angeles
Ethics Commission, ``Bucks for Ballots?'' Los Angeles Times, August 27,
2014, online edition.
\180\ George F. Will, ``A Perfectly Awful Idea: Pay Voters,'' The
Washington Post, September 21, 2014, p. A23.
\181\ Katy Owens Hubler, ``Voting: What's Next?'' State
Legislatures, July/August 2014, pp. 59-61.
---------------------------------------------------------------------------
Another set of options removes the House redistricting
process from State legislatures. The objective is to end
partisan gerrymanders by State legislatures and, for example,
assign that responsibility to an outside independent and
bipartisan commission of private citizens. The purposes of the
redistricting option are twofold: first, to increase the
opportunity for centrists to win office and to minimize the
election of Members who are too far left or too far right;
second, to strive to make House districts more competitive
electorally (as already mentioned, over 90 percent of House
incumbents are regularly reelected). Scholars, however, suggest
that redistricting may have limited impact on polarization of
the House, noting that the Senate's extreme partisanship
mirrors the House. Moreover, States with only one House Member
are as sharply partisan as those represented by several
Members.
A third set of options is to encourage the States to
establish new forms of primaries in which more voters can
participate. For example, everyone who is running, regardless
of party, appears on the ballot. The top two vote-gatherers
advance to the general election, even if that means a contest
between two Democrats or two Republicans. A principal advocate
of this approach, which is observed by California, Louisiana,
and Washington State, suggests that it would ``encourage more
participation in primaries'' and ``remove the incentive that
pushes our politicians to kowtow to the [extreme] factions of
their party'' that vote in the usually low turnout party
primaries.\182\ Scholars doubt ``that changes in primary
participation can explain the polarizing trends of the past
three decades.'' \183\
---------------------------------------------------------------------------
\182\ Charles E. Schumer, ``End Partisan Primaries, Save America,''
The New York Times, July 22, 2014, p. A19. Also see Reid Wilson, ``To
Cure Rampant Partisanship, Empower Voters in the Middle,'' The
Washington Post, October 19, 2013, p. A5.
\183\ Michael Barber and Nolan McCarty, ``Causes and Consequences
of Polarization,'' in Negotiating Agreement in Politics, p. 29.
---------------------------------------------------------------------------
internal changes
Examples of internal changes that Congress might undertake
include these three. First, one suggestion is to move the House
and Senate away from their current ``Tuesday to Thursday''
weekly work pattern. Members arrive in Washington, DC, from
their States or districts on Monday, concentrate their manifold
responsibilities in 3 days, and depart on Thursday evening or
Friday to go home to meet with constituents and engage in other
representational activities, to travel elsewhere to fundraise,
to campaign for others or their party, or to raise their
national visibility.\184\ A recommendation is for each Chamber
to employ a coordinated Monday through Friday work schedule for
3 out of 4 weeks, with the 4th week set aside exclusively for
constituency work back home or other congressional activities.
One benefit of maximizing their time in Washington, say
proponents of this approach, is that Members would have more
opportunities to develop bipartisan collaborative relationships
that might facilitate lawmaking and oversight (the review of
executive branch performance). On the other hand, voters seem
to want lawmakers to spend more time in their States or
districts.\185\ Technology might be able to accommodate the
clash between what some lawmakers might prefer (more time in
Washington) or the country might need versus what their
constituents want (more time at home).
---------------------------------------------------------------------------
\184\ Representative Dingell of Michigan explained why bipartisan
collegiality is hard to come by in today's Congress: ``We hit town on a
Monday or Tuesday afternoon, we vote at 6:30, and one of the first
things we're doing is checking to see about getting a plane back to the
district. Families don't get to know each other, members don't get to
know each other. The things that used to pull us together--the
association of the families, the gym of the House--they don't do this
anymore, and so the members don't [get] the closeness and we don't get
trust.'' Ashley Parker, ``From `a Child of the House' to the Longest-
Serving Member,'' The New York Times, June 6, 2013, p. A14. Today,
Members' families do not usually move to the Washington, DC, area for
various reasons: to avoid campaign charges that they've ``gone
Washington,'' the high cost of housing in the DC area, concerns about
uprooting their children, or the fact that many women are now in the
workforce and reluctant to leave their home-State jobs.
\185\ The 3:1 schedule is difficult to implement for various
reasons, but perhaps none more important than electoral. As a GOP House
Member stated: ``The more time members stay away from their districts,
the worse it is for them politically. Few constituents expect to agree
with their member on all or even most things, but they do get upset if
the member does not listen or seems not to be listening to them.''
Added a Democratic lawmaker, a 5-day work schedule ``leaves you
vulnerable to a challenger who will be at home `in touch with his
constituents.' '' The quotations are from Nathan L. Gonzales, ``Why
Democrats and Republicans Can't Be Friends,'' Roll Call, July 8, 2014,
online edition. Also see Mark S. Mellman, ``Socializing and
Polarizing,'' The Hill, April 9, 2014, p. 19.
---------------------------------------------------------------------------
Second, time is perhaps the most valuable commodity of
lawmakers: there is just too little of it for all their
responsibilities. For example, new issues constantly make it to
Congress' agenda, many quite complex. The time available to
read, study, and reflect on emerging, let alone emergent,
issues is all too brief. As former Senate Majority Leader
George Mitchell (1989-1995), pointed out, ``What we do not lack
is the means by which to learn about issues. There is no
shortage of information. There is a shortage of time.'' \186\
---------------------------------------------------------------------------
\186\ Congressional Record, v. 135, October 20, 1989, p. 25359.
---------------------------------------------------------------------------
In brief, Congress might consider ways beyond scheduling
changes to reconfigure what it does now to determine if more
time could be made available to Members and the institution if
certain activities occurred over a longer period, such as
biennial rather than annual appropriations and budget
resolutions. Some current work requirements might even be
eliminated or assigned to other entities. With more time,
lawmakers might have more opportunities to get to really know
Members of the opposition party, to socialize together, and to
develop the trust that allows for bipartisanship cooperation on
a range of issues.\187\
---------------------------------------------------------------------------
\187\ Worth noting is neither polarization nor bipartisanship is
any guarantee that effective legislation would pass Congress.
Worthwhile measures could pass in either circumstance. However, since
neither party has a monopoly on good ideas, bipartisanship might at
least provide a broader range of views on how to resolve pressing
national issues.
---------------------------------------------------------------------------
Third, an approach that might be the easiest--or hardest--
to accomplish is to persuade a critical mass of lawmakers in
both Chambers that cooperation and compromise are necessary to
resolving national problems, especially in the Nation's
congressional-Presidential system of government. Absent a
landslide electoral victory--or perhaps several in a row--that
would allow one party to govern on its own, Members might be
persuaded that neither party, nor a faction therein, can impose
its agenda on the other. Persuasion is likely to come over
time, as it has in the past, from a combination of internal
legislative leadership and outside pressures from the
citizenry. Acts of bipartisanship between and among Members
might also slowly change the polarized culture of Congress. As
James Madison noted, ``It takes time to persuade men [and
women] to do even what is for their own good.'' \188\
---------------------------------------------------------------------------
\188\ Clinton W. Ensign, Inscriptions of a Nation (Washington, DC:
Congressional Quarterly, Inc., 1994), p. 37.
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gridlock and governance
When the six-decade veteran of the House, John Dingell,
announced that he would not seek reelection to the 114th
Congress (2015-2017), he expressed strong dismay because of its
overly partisan culture and the unwillingness of Members to
compromise their differences to achieve policy results. ``I
find serving in the House to be obnoxious,'' declared Dingell.
``It's become very hard because of the acrimony and bitterness,
both in Congress and in the streets.'' \189\
---------------------------------------------------------------------------
\189\ Karen Tumulty and Paul Kane, ``Legislative Giant Leaving a
Changed Congress,'' The Washington Post, February 25, 2014, p. A1.
---------------------------------------------------------------------------
In contrast, when Henry Waxman of California, Dingell's
four-decade Democratic colleague, announced his retirement from
the House, his perspective on the institution was significantly
different from Congress' longest serving lawmaker. ``There are
elements of Congress today that I do not like,'' remarked
Waxman. ``But I am not leaving out of frustration with
Congress.'' Patience and persistence are essential to
lawmaking, said Waxman, ``[Y]ou outlast [the opposition]. You
keep working. You keep looking for combinations.'' He added:
Even in today's environment, there are opportunities to
make real progress. [In the 112th Congress], I worked with
Democrats and Republicans in the House and Senate to pass
legislation that will ease the nation's growing spectrum
shortage, spur innovation in new ``Super WiFi'' technologies,
and create a national broadband network for first responders.
[In 2013], I worked on a bipartisan basis to enact legislation
strengthening FDA's authority to stop dangerous drug
compounding and to track pharmaceuticals through the supply
chain.\190\
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\190\ Representative Henry Waxman, ``Rep. Henry A. Waxman Announces
Plans to Retire from Congress,'' press release, January 30, 2014, p. 5.
Who is right? \191\ The short answer is, perhaps, both.
Five considerations might help to explain the duality of Member
perspectives.
---------------------------------------------------------------------------
\191\ See William F. Connelly, Jr., ``Does James Madison Still Rule
America?'' Extensions, summer 2014, pp. 10-15. Professor Connelly posed
the question, ``Who is right?'' in this article. Extensions is a
publication of the Carl Albert Congressional Research and Studies
Center at the University of Oklahoma.
---------------------------------------------------------------------------
First, the constitutional system, by design, makes
lawmaking difficult whether the United States has a divided or
unified government. Interbranch and bicameral cooperation and
conflict are endemic to a system that requires the approval of
the three elective branches before an idea becomes law.
Considerable time might pass--years or decades at times--before
Congress and the country, not to mention the White House,
finally reach a policymaking consensus. There are occasions
when Congress acts quickly to address national or international
crises. Yet one task of representative government is to
``refine and enlarge the public views,'' as Madison wrote in
The Federalist (No. 10) deg.. However, if the
electorate is conflicted on various issues (immigration reform,
climate change), that reality will be reflected in Congress. In
the view of a congressional scholar, ``Gridlock does not
reflect a failure of democratic representation--gridlock
reflects effective representation of diverging
constituencies.'' \192\ In short, the Nation's constitutional
system permits both gridlock and governance.
---------------------------------------------------------------------------
\192\ Abramowitz, ``The Electoral Roots of America's Dysfunctional
Government,'' p. 728.
---------------------------------------------------------------------------
Second, given the conditional party government model in
which the two parties each exhibit strong ideological unity but
diverge widely on their policy objectives, Congress emulates at
times a parliamentary or semiparliamentary system. The minority
party opposes, while the majority party strives to govern. With
different parties in charge of the House and Senate, each
Chamber enacts legislation that remains unacted-upon by the
other body.\193\ The Chamber that passes many measures can
argue that it is productive; the other Chamber might contend
that it, too, is productive by blocking ``message bills'' that
have no chance of becoming law. Governance in this environment
becomes problematic because the minority party, especially in
the Senate, has the procedural tools to stymie the majority
party's agenda. How, when, or if the conditional party
government model will change is unclear, but elections are a
major part of the answer. As GOP Representative James A.
Garfield of Ohio wrote in 1877, ``the people are responsible
for the character of their Congress.'' \194\ (In 1881, Garfield
became the 20th President of the United States.)
---------------------------------------------------------------------------
\193\ Philip Bump, ``Legislative Inaction: So What Else Is New?''
The Washington Post, August 10, 2014, p. A2. Also see Stephen Dinan,
``Do-Something Congress Keeps on Going,'' The Washington Times,
September 9, 2014, p. A1.
\194\ James A. Garfield, ``A Century of Congress,'' The Atlantic
Monthly, vol. 40, July 1877, p. 63. In the view of Representative John
Dingell, ``there's only one group of people'' that can change Congress
and ``that's the voters. If they want [Congress] to change, it will
change.'' Tumulty and Kane, ``Legislative Giant Leaving a Changed
Congress,'' p. A4.
---------------------------------------------------------------------------
Third, Congress and the country have gone through many
other contentious partisan eras. A noted historian called the
years from 1830 to the 1900s ``The Partisan Era.'' \195\ For
example, Cornell University history professor Joel Silbey found
that in the 1840s, ``partisan unity on policy was very high in
both houses . . . . On tariff and banking bills and other
economic legislation, on questions of territorial expansion,
and on most new issues added to the mix, each party was able to
mobilize the mass of its Members to vote the party line.''
\196\ Today's partisan era pales in comparison to the years
leading up to the Civil War (1861-1865).
---------------------------------------------------------------------------
\195\ Julian E. Zelizer, ed., The American Congress (Boston:
Houghton Mifflin Co., 2004), p. 131.
\196\ Joel H. Silbey, ``Congress in a Partisan Political Era,'' in
The American Congress, p. 145.
---------------------------------------------------------------------------
Fast forward to the 20th century to remember the political
divisions in Congress and the country between rural and urban
interests and over the New Deal, the Vietnam war, and the
struggle for civil rights for African Americans. Partisan
clashes within and outside Congress, and the rivalry and
gridlock they can promote, have been ``a prime catalyst
propelling the values, ideas, and policies through which
American consensus has emerged . . . . Partisan competition has
been at the center of our struggle to advance as a people and a
nation. It has been our most important engine for adaptation
and change--one that remains in full motion.'' \197\ As a
scholar and top-ranking 30-year staff member of the House
wrote, Congress and the country ``have endured much more
partisan, raucous, and rancorous times [over its history], and
both have emerged the better for it.'' \198\
---------------------------------------------------------------------------
\197\ John L. Hilley, The Challenge of Legislation: Bipartisanship
in a Partisan World (Washington, DC: The Brookings Institution Press,
2008), p. 229.
\198\ Donald R. Wolfensberger, Congress & the People: Deliberative
Democracy on Trial (Washington, DC: The Woodrow Wilson Center Press,
2000), pp. 282-283. Worth noting is that, periodically, scholars,
lawmakers, and journalists lament that Congress is not performing as
well as it might. During the 1950s and 1960s, for example, these
individuals argued for a more disciplined and responsible party system.
The titles of their books said it all: The Deadlock of Democracy
(1963), by James McGregor Burns; Obstacle Course on Capitol Hill
(1964), by Robert Bendiner; Congress: The Sapless Branch (1964), by
Senator Joseph S. Clark; or House Out Of Order (1965), by
Representative Richard Bolling. Decades later with two polarized
parties in Congress, a number of books have been written that express
dismay at this development. Some titles include The Broken Branch
(2006), by Thomas Mann and Norman Ornstein; Fight Club Politics (2006),
by Juliet Eilperin; and The Second Civil War (2007), by Ronald
Brownstein. See Rawls, In Praise of Deadlock, pp. 1-2.
---------------------------------------------------------------------------
Fourth, today's Congress confronts an array of complexities
that make lawmaking more difficult than in previous periods.
Take the environment, for example. It was once conceived as
primarily a local or regional issue. To many, it is now a
planetary challenge. Problems seem harder (terrorism,
cybersecurity, entitlement reform) to resolve, many have global
dimensions, and the politics are harder in a nation of over 300
million people, many represented by numerous interest groups.
Add to these matters divided government; lack of trust among
lawmakers; \199\ technology (the Internet, social media, email,
blogs) that is used, for instance, to frame issues to the
advantage of partisan viewpoints; fiscal deficits; and the
competing visions of the two parties as to what constitutes
``good governance.'' Repealing laws or enacting laws sometimes
seems to be in conflict as to which should take priority in the
contemporary House and Senate.
---------------------------------------------------------------------------
\199\ According to Democratic Senator Martin Heinrich of New
Mexico, the problem on Capitol Hill is less about ideology and more
about the reality that lawmakers ``don't trust each other enough to
work together. A lot of our predecessors were from very different
ideological places, but they had a personal trust so that they could
negotiate in good faith.'' He added that the lack of trust ``is really
caustic to the functionality of this place.'' Dana Milbank, ``Building
Trust, One Palm Frond at a Time,'' The Washington Post, September 21,
2014, p. A21.
---------------------------------------------------------------------------
Fifth, to a large extent, what shapes the broad policy and
political context in Congress and the country is the perennial
and ongoing debate about the role of the central government.
This issue divided our Founding Fathers--Jefferson favored a
limited role, and Hamilton an energetic role, for the national
government. Today, Democrats generally favor an activist,
problem-solving national government that expands individual
opportunities; Republicans generally emphasize problem solving
by the private sector and localities and the values of personal
freedom and responsibility. Public controversy about the
national government's size and role is never-ending. It is an
unresolvable debate that has raged for over 200 years and
contributes to the acrimonious partisanship dividing the two
parties and their respective electoral coalitions.
To conclude: Congress is an institution constantly in flux.
It remains, however, the world's most influential legislative
assembly, able to check and balance a powerful executive, to
initiate policies of its own, and to oversee executive branch
performance. The policy and political struggles among the
elective units are permanent features of the Nation's
constitutional system that continue to shape the evolution and
work of Congress. Change, in brief, is a permanent feature of
democratic legislative assemblies. As Thomas Jefferson
emphasized, ``[A]s new discoveries are made, new truths
discovered and manners and opinions change, with the change in
circumstances, institutions must advance also to keep pace with
the times.'' \200\
---------------------------------------------------------------------------
\200\ Letter to Samuel Kercheval, July 12, 1816, The Writings of
Thomas Jefferson, Memorial Edition, vol. 15 (Washington, DC: The Thomas
Jefferson Memorial Association of the United States, 1904), p. 41.
Being a Member of Congress: Some Notable Changes During the Last Half
Century
Michael L. Koempel
Senior Specialist in American National Government
----------
Notable changes have occurred in Congress' evolution
from the immediately past congressional era (generally,
the 1960s, 1970s, and 1980s) to the Congress we know
today. These changes have affected Members' experience
of their congressional service. Over time, both
Chambers developed strategies to reduce the quantity of
time given over to legislative work in order to
accommodate Members' other duties. Members have met the
challenges of constituent relations with information
technology, and must now deal with lobbying campaigns
directed at their constituents. To accommodate their
electoral goals, Members now typically spend a part of
nearly every day they are in Washington, DC, raising
campaign money. Many Members have chosen to reside in
their States or districts to accommodate spouses with
careers and to retain their network of social and
financial support.
Introduction
This report describes some of the notable changes that have
occurred in Congress' evolution from the immediately past
congressional era (generally, the 1960s, 1970s, and 1980s) to
the Congress we know today, and reflects upon the impact of
these changes on Members of Congress and their service.
The changes and reflections are divided into four topics:
legislative, representational, political, and personal. For
each topic, the report discusses one, two, or three aspects of
service in Congress. It provides an overview of each aspect in
the earlier era, identifies some of the reasons for change or
evolution, and briefly explains that aspect of service in
today's Congress.
The report demonstrates that change of all sorts, internal
and external, has affected Congress. Congress today reflects
shifts in the United States and the world since the 1960s.
Congress is in a new era, for many reasons, and a new
framework for understanding it should be considered. Proposals
for change, reform, or new procedures must be appropriate to
the new framework. This report is only an introduction to the
changes Congress has undergone and is neither comprehensive nor
exhaustive.
For an analysis of Congress' institutional evolution, see
the companion CRS centennial report in this volume, The
Evolving Congress: Overview and Analysis of the Modern Era, by
Walter J. Oleszek.
Legislative Responsibilities
Today, Members of Congress spend less time in Washington,
DC, and in session than they did in the previous era. Rather
than meet 5 or even 4 full days a week, week after week, both
Chambers tend to set initial votes for a given week to occur
late on a Monday, allowing Members to travel from their States
or districts that day. Final votes for weekly sessions
frequently end Thursday afternoon, in time for Members to make
late-afternoon and evening flights to the west coast, or by
midday Friday. Friday sessions might also be held, but often
without votes being scheduled. Votes drive attendance.
In addition, Congress has taken more frequent and longer
recesses, also called district or State work periods, leaving
Members additional time in their States or districts or to
undertake other work, such as fundraising and campaign trips on
their own behalf or on behalf of current or possible future
colleagues.
A Member's legislative work in committee, on the floor, and
with colleagues and Washington staff is packed into the
Tuesday-to-Thursday timeframe in fewer weeks of session than in
the previous era.
The process of compacting the time consumed by legislative
workload did not begin recently. During the 1970s, the
legislative workload left little time for Members' other
duties, such as travel to home States and districts, and their
personal wishes, such as family time. There were many votes,
quorum calls, and committee hearings. Over time, both Chambers
developed strategies to reduce the quantity of time given over
to legislative work to allow more time for Members' other
duties and personal wishes. There was a great desire on
Members' part for more efficiency and predictability in
scheduling and processing legislation.\1\
---------------------------------------------------------------------------
\1\ On a related subject, see the companion CRS centennial report
in this volume, Comparing Modern Congresses: Can Productivity Be
Measured?, by Jacob R. Straus.
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On the House and Senate Floors, a Drive for Efficiency
The Senate in 1964 made history when, for the first time,
it voted to end a filibuster on civil rights. The June 10 vote
was 71-29, four more ``yeas'' than were necessary for cloture.
The vote ended a 57-day filibuster and came 74 days after the
House-passed bill was first brought before the Senate.\2\
---------------------------------------------------------------------------
\2\ ``Civil Rights Act of 1964,'' in Congressional Quarterly
Almanac, 1964, vol. XX (Washington, DC: Congressional Quarterly Inc.,
1965), p. 338. For an example of the conditions that may be needed for
major legislation to be enacted, see the companion CRS centennial
report in this volume, The Dynamics of Congressional Policymaking: Tax
Reform, by Jane G. Gravelle.
It is difficult today to imagine a debate lasting so long
or the Senate or the House being in session for so long without
a several-day or weeklong recess. In the Senate in the
preceding era, Senators' rights to debate and offer amendments
to amendments and nongermane amendments prevailed.\3\ In the
House, few measures were considered under the suspension of the
rules procedure. Most legislation was considered under an
``open'' special rule, under which all amendments not violating
a House rule could be offered and then debated for as long as
another Member sought 5 minutes of debate time.\4\
---------------------------------------------------------------------------
\3\ Another aspect of change in the Senate is explored in the
companion CRS centennial report in this volume, Collaborative
Relationships and Lawmaking in the U.S. Senate: A Perspective Drawn
from Firsthand Accounts, by Mark J. Oleszek.
\4\ See Walter Kravitz, Congressional Quarterly's American
Congressional Dictionary, 3d ed. (Washington, DC: CQ Press, 2001), p.
223:
``Rule--(2) In the House, a privileged simple resolution proposed
by the Rules Committee that provides methods and conditions for floor
consideration of a measure or, rarely, several measures. The resolution
is also called a special rule, special order, or order of business
resolution. With few exceptions, major nonprivileged bills are taken up
under the terms of such resolutions that the House has approved.
Explicitly or implicitly, a special rule can temporarily waive any rule
of the House or any statutory rule during consideration of a measure,
but it may not set aside . . . a motion to recommit, or a
constitutional requirement.
``The common terms for different types of rules usually reflect
their treatment of amendments. An open rule puts no limit on the number
of amendments that may be offered, providing the amendments do not
violate a rule or practice of the House. A closed rule, sometimes
called a gag rule, permits no amendments or only those offered by the
reporting committee. A modified rule permits some amendments but not
others. According to Deschler-Brown Precedents, a modified open rule
permits any germane amendment except certain designated ones, while a
modified closed rule prohibits the offering of amendments except those
it designates. Some rules ban amendments to certain parts of a measure
but not to other parts.''finagled deg.
\5\ Well into the 1970s, tax bills were routinely considered on the
floor under a closed rule. In that instance, the reform or change that
occurred was to consider them on the floor under what was termed a
modified closed rule, which today would be referred to as a structured
rule, under which only amendments listed in the rule or the
accompanying Rules Committee report were in order. See, for example,
``House Passes Wide-Ranging Tax Revision Bill,'' in Congressional
Quarterly Almanac, 1975, vol. XXXI (Washington, DC: Congressional
Quarterly Inc., 1976), pp. 151-152.
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In both Chambers, it was common for specific bills to
consume days (in the House) or more than a week (in the Senate)
of floortime. Members spoke on the floor and voted often. These
circumstances are not unknown in the contemporary House and
Senate; they have simply become less common.
Beginning in the 1970s, both Chambers developed strategies
to reduce the legislative workload on the floor and the time it
consumed, which freed Members to pursue their many other duties
and addressed their desire for added personal time. Gradually,
Members gained the time they needed for other responsibilities,
although apparently not personal time (see ``Personal Impact of
Congressional Service'' below). In the House, changes that
increased the Chamber's efficiency in managing its legislative
workload included:
making the motion to suspend the rules in order--originally
on alternate Mondays, and then gradually expanding it to its
status today, where it is in order on Mondays, Tuesdays, and
Wednesdays;
barring commemorative legislation;
experimenting with special rules that were alternatives to
open rules, such as preprinting rules, modified open rules, and
modified closed rules,\5\ eventually settling on structured
rules as the most common form of special rule that is used;
restricting to very few occasions the ability of a Member to
make a point of order that a quorum is not present;
permitting cluster voting and 5-minute and 2-minute voting;
limiting the number of 1-minute speeches and the time
available for special order speeches;
allowing only full-text substitutes to annual concurrent
resolutions on the budget; and
eliminating the second annual (autumn) concurrent resolution
on the budget required by the Congressional Budget Act of 1974
(P.L. 93-344).
In the Senate, changes and innovations that increased the
Chamber's efficiency in managing its legislative workload
included:
cutting to three-fifths of the membership, from two-thirds
voting, the number of Senators' votes required to invoke
cloture; \6\
---------------------------------------------------------------------------
\6\ The Senate has also recently established a precedent allowing a
majority vote to invoke cloture on executive and judicial nominations,
except nominations to the Supreme Court. For an examination of this
precedent and its operation in the 113th Congress, see CRS Report
R43331, Majority Cloture for Nominations: Implications and the
``Nuclear'' Proceedings, by Valerie Heitshusen.
---------------------------------------------------------------------------
restricting debate time and other elements of consideration
after cloture has been invoked to prevent so-called postcloture
filibusters; \7\
---------------------------------------------------------------------------
\7\ See Walter J. Oleszek, Congressional Procedures and the Policy
Process, 9th ed. (Thousand Oaks, CA: CQ Press, 2014), p. 315.
---------------------------------------------------------------------------
creating the two-track system for consideration of one or
more bills at the same time (e.g., one in the morning and one
in the afternoon) so that a measure or amendment being debated
extensively does not halt the Senate's consideration of other
legislation; \8\
---------------------------------------------------------------------------
\8\ The Senate has operated on more than two tracks. For instance,
it has divided a day into three tracks, with a different bill on each
track.
---------------------------------------------------------------------------
expanding the use of unanimous consent agreements to
structure the Senate's consideration of measures and other
matters;
permitting ``side-by-side'' consideration of amendments;
using cluster voting;
developing the ``hotline'' to allow routine legislation and
nominations to be quickly approved; and
adopting the Byrd rule to exclude extraneous matter from
reconciliation bills and resolutions.\9\
---------------------------------------------------------------------------
\9\ After the late Senator Robert Byrd, who first offered the
amendment disallowing extraneous matter. For an examination of the Byrd
rule, see CRS Report RL30862, The Budget Reconciliation Process: The
Senate's ``Byrd Rule,'' by Bill Heniff, Jr.
---------------------------------------------------------------------------
Through these changes, Representatives and Senators gained
a degree of efficiency and predictability in the workload on
the Chambers' floors. In the House, a great deal of legislation
is now considered under the suspension of the rules procedure.
Its use of structured special rules means that most measures
for which there is an amendment process can be completely
considered in less than a day. In the Senate, noncontroversial
legislation and nominations may be considered and agreed to by
unanimous consent, taking just a few minutes of the Senate's
time. Other legislation and nominations nonetheless require
considerable floortime. When the Senate is able to reach
unanimous consent on a comprehensive set of procedures or on
consecutive iterative sets of procedures for considering
legislation or nominations, it can move methodically through
its workload.
Members, however, have given up perquisites and privileges
over this long period. To be able to complete floor
consideration of a major piece of legislation in a day or less,
Representatives have fewer opportunities to offer first-degree
amendments, and they have largely lost the ability to offer
substitute and second-degree amendments. Fewer Representatives
are able to speak because amendment debate is often limited to
10 minutes, putting more pressure on the 1 hour allowed for
debate on a special rule and the usual 1 hour of general debate
allowed on a measure before the amendment process begins.
Senators, too, have fewer opportunities to offer amendments
because leadership over the last decade or more has become
increasingly reluctant to bring measures to the floor in the
absence of a unanimous consent agreement on the amendment
process.\10\ Although Senators and leadership have many
purposes in wanting to extend or curtail the amendment process,
one concern they share is the time that will be consumed and
the impact of an extended debate on the Senate's workload and
individual Senators' other duties.\11\
---------------------------------------------------------------------------
\10\ ``No Democratic members of the class of 2012 have ever
received a vote on their amendments on the Senate floor.'' Burgess
Everett, ``Senate Democrats push back on gridlock,'' Politico, June 26,
2014, at http://www.politico.com/story/2014/06/washington-gridlock-
108330.html.
\11\ See the companion CRS centennial report in this volume, The
Evolving Congress: Overview and Analysis of the Modern Era, by Walter
J. Oleszek; the CRS Web site, for numerous products on House and Senate
procedures, many of which are hyperlinked on a page called
Congressional Operations, at http://www.crs.gov/Analysis/CongOps.aspx;
and Walter J. Oleszek, Congressional Procedures and the Policy Process.
---------------------------------------------------------------------------
In Committees, a Reduction of Time
The . . . [House Education and Labor] Committee marked up
H.R. 2362 [the Elementary and Secondary Education Act of 1965,
ESEA] in executive sessions between Feb. 25 and March 2. [The
committee markups occurred Thursday, February 25; Friday,
February 26; Saturday, February 27; and Tuesday, March 2.] On
March 2 it ordered the bill reported with amendments on a 23-8
vote.\12\
---------------------------------------------------------------------------
\12\ ``First General School Aid Bill Enacted,'' in Congressional
Quarterly Almanac, 1965, vol. XXI (Washington, DC: Congressional
Quarterly Inc., 1966), p. 275; and ``House Committees,'' Daily Digest,
Congressional Record, vol. 120, part 23 (February 25, 1965), pp. D72,
D76, D80.
Committees in the two Chambers serve both similar and
dissimilar purposes. A committee is the forum in which Members
develop expertise on specific policy issues, legislation, and
laws. A committee is also the forum for Members closest to
particular policy issues to serve as the Chambers' eyes and
ears through hearings and other means and to determine how to
address an issue--through hearings, an investigation, a staff
study, a letter to the President or a Cabinet secretary, a site
visit, legislation, or another mechanism. If legislation is
needed, committees draft it or choose from the alternatives
that have been introduced, and they mark up and report
measures.
Committees also reflect the dissimilarities of their parent
Chambers. In the majoritarian House, Members' opportunities to
offer amendments on the floor are routinely limited. Even if a
Member's amendment is made in order, it must usually attract a
significant number of majority votes to win, whether the
proponent is a majority- or minority-party Member. Members,
therefore, seek to have their policy choices, large or small,
included in committee-reported measures. Committee-reported
legislation may be approved by the House without extensive
amendments.
In the Senate, where rules and traditions favor the rights
of individual Senators, any Senator may be an important player
on the Senate floor on any piece of legislation or any
nomination if he or she wishes to be. Committee-reported
legislation may be approved by the Senate only after extensive
amendments, including consideration and possible adoption of
nonrelevant or nongermane amendments.
The same issue of time consumed by the legislative workload
on the floor of the two Chambers was also a concern within
committees in the earlier era. This concern was magnified when
the Chambers adopted reforms to open most committee and
conference meetings to public and media attendance. The
legislative workload took too much time, to the detriment of
time available for Members' other duties and personal wishes.
It was common for committee hearings to be held at the request
of individual committee members to satisfy a political or
constituency need, in addition to hearings preparatory for
markup of the numerous new, annual, and biennial authorization
bills that Congress regularly considered in the 1970s. Markups
often took more than 1 day and, for the most important
authorization bills, might consume a number of days over a
month or more. The example of the ESEA markup was typical, not
exceptional. These circumstances are not unknown in the
contemporary House and Senate; they have simply become less
common.
Over time, Members and committees developed a number of
strategies to reduce the time consumed by their legislative
workload in committee. These include procedural changes, such
as
In the House, rather than using an introduced measure as the
markup vehicle, the majority might employ an amendment in the
nature of a substitute on which the majority can quickly end
the markup process and move to a vote to report if the minority
seeks to extend consideration. Alternately, or in addition,
committees might use an amendment roster, potentially limiting
the amendments that may be considered.
In the Senate, a committee might use negotiation before
markup and unanimous consent at markup to agree quickly to
committee members' amendments, deferring amendments that cannot
be negotiated and agreed to by unanimous consent to the Senate
floor, where they could potentially be offered if the sponsor
chooses. Alternately, or in addition, committee members might
agree to the concept or principle of one or more amendments,
with drafting delegated to committee staff and legislative
counsel.\13\
---------------------------------------------------------------------------
\13\ See, for example, Robert G. Kaiser, ``Even when it succeeds,
Congress fails,'' The Washington Post, May 26, 2013, p. B4.
---------------------------------------------------------------------------
Changes have also occurred in practice, such
as:finagled deg.
---------------------------------------------------------------------------
\14\ Concerning the funding of House and Senate staffs, see the
companion CRS centennial report in this volume, Congressional Staffing:
The Continuity of Change and Reform, by Ida A. Brudnick.
---------------------------------------------------------------------------
Members declining to ask for hearings,
staff receiving briefings from agency officials in lieu of
hearings,
staff briefing committee members in lieu of hearings,
premarkup exchanges among staff to narrow the set of
decisions for committee members,\14\
a decline in the number of authorization bills,
fewer subcommittee markups, and
less legislation reported to the parent Chamber.
Three other important changes have affected committees.
First, committees' sizes have increased. More Members serve on
each committee, and more Members have multiple committee
assignments. Committees and their members are therefore
affected by the difficulty of Members juggling conflicting
hearings and meetings, by the loss of flexibility and
spontaneity associated with having a greater number of members
on a committee, and by committee members not knowing each other
well. Members might also be discouraged from attending hearings
by the amount of time it takes for each member of a committee
to have time for questions or the opportunity to ask a new
question late in a hearing. Members' time to make opening
statements, ask additional questions at hearings, or offer or
debate amendments at markup may be inhibited by the
practicalities of completing the task at hand. Public
attendance at committee meetings may also be affected, where
committee daises have expanded into public seating areas to
accommodate larger committee memberships.\15\
---------------------------------------------------------------------------
\15\ For additional information on committee sizes and ratios, see
CRS Report R41501, House Legislative Procedures and House Committee
Organization: Options for Change in the 112th Congress, by Judy
Schneider and Michael L. Koempel. See also CRS Report RL34752, Senate
Committee Party Ratios: 98th-112th Congresses, by Matthew E. Glassman;
and CRS Report R40478, House Committee Party Ratios: 98th-113th
Congresses, by Matthew E. Glassman.
---------------------------------------------------------------------------
Second, committees' work products are less influential when
the majority Chamber leadership wishes to consider legislation.
In the House, the Rules Committee might be asked by leadership
to bypass committees or to make in order for floor
consideration a committee-reported measure that includes
substantive changes or even leadership's own version of a
measure. In the Senate, the majority leader might choose a
legislative vehicle for floor consideration different from one
reported by a committee. Alternatively, he might choose a
measure that was placed on the Senate Calendar in lieu of
committee consideration, or he might choose an amendment in the
nature of a substitute, which he might offer by taking
advantage of his priority of recognition.\16\
---------------------------------------------------------------------------
\16\ For an example of the ways in which the House and Senate may
choose a legislative vehicle for floor consideration, see the companion
CRS centennial report in this volume, Shocks to the System: Congress
and the Establishment of the Department of Homeland Security, by
William L. Painter. For an example of policymaking that occurred
through the appropriations process rather than the authorization
process, see the companion CRS centennial report in this volume, Use of
the Appropriations Process to Influence Census Bureau Policy: The Case
of Adjustment, by Jennifer D. Williams.
---------------------------------------------------------------------------
A third change affects Members who chair committees or
serve as ranking minority members, although House Republican
chairs and ranking minority members are much more dramatically
affected than Senate Republican chairs and ranking minority
members. That change is term limits. Under the House rule, a
Member serving for 6 years as a chair, as a chair and ranking
minority member, or as a ranking minority member must give up
that chairmanship or ranking minority member slot.\17\
Democrats kept this House rule for the 110th Congress but
repealed it for the 111th Congress; Republicans reinstated the
rule in the 112th Congress.\18\
---------------------------------------------------------------------------
\17\ House rules, under both Democratic and Republican control,
have limited service on the Budget and Intelligence Committees. House
rules also exempted the chair of the Rules Committee from a term limit.
\18\ Committee service is also not necessarily the path to Chamber
leadership that it once was. See, for example, Janet Hook, ``Kevin
McCarthy's Rise Shows New Path to Power in Congress,'' Wall Street
Journal, June 16, 2014, at http://blogs.wsj.com/washwire/2014/06/16/
kevin-mccarthys-rise-shows-new-path-to-power-in-congress/tab/print.
---------------------------------------------------------------------------
In the Senate, the term-limit rule is a Republican
Conference rule only and allows a Republican Senator to serve 6
years as a chair and 6 years as a ranking minority member
before he or she is precluded from one or both of the two top
places on a committee. In addition to the distinction in
tolling service separately for chairing and serving as ranking
minority member, senior Senators can relatively easily assert
their seniority to claim a chairmanship or ranking minority
member position on the committee of their choice when they are
the most senior on two or more committees.\19\
---------------------------------------------------------------------------
\19\ For an examination of the committee assignment and chair
selection processes in the two Chambers, see the companion CRS
centennial report in this volume, Committee Assignments and Party
Leadership: An Analysis of Developments in the Modern Congress, by Judy
Schneider.
---------------------------------------------------------------------------
Another traditional responsibility of committee members is
to serve as conferees on House-Senate conference committees,
seeking to reconcile differences between House-passed and
Senate-passed companion legislation. In the past era, it was
common in the last months of each session of Congress for a
dozen or more conference committees to be working more or less
simultaneously. Conference committees have become much less
common, with the House and Senate preferring the less time-
consuming approach of agreeing to a measure as passed by the
other Chamber or the alternative of exchanging amendments, a
process called amendments between the Houses (or, popularly,
``ping pong'').\20\
---------------------------------------------------------------------------
\20\ For an explanation of how the House and Senate may come to
agreement, see CRS Report 98-696, Resolving Legislative Differences in
Congress: Conference Committees and Amendments Between the Houses, by
Elizabeth Rybicki.
---------------------------------------------------------------------------
Whether the process of amendments between the Houses or a
formal conference committee is used, the practice has evolved
that most of the work of reconciling differences is conducted
by the chairs and majority staff of the committees of
jurisdiction. The ranking minority members and minority staffs
of the same committees might also participate. House and Senate
party leaders are often key players in resolving bicameral
differences on major legislation. Some conferees might also be
appointed to provide the Members with visibility. If a
conference has been convened, it might meet just once, to
approve agreements, or twice, initially to make opening
statements and later to approve agreements.
Again, these changes have afforded Members more time for
their other duties and personal wishes. Committees have become
quite efficient: there is less committee work, and what work
remains is conducted in less time. Many hearings and markups
still take place, and some hearings and markups cover multiple
committee meetings, but committee work simply consumes less
time in the contemporary Congress than it did in the previous
era.
These changes have come at a cost to Members, however, who
have lost some of what could be one of the most satisfying
parts of being a Member of Congress. It is through committee
work that Members have traditionally developed deep expertise
in policy subjects, administrative feasibility, costs,
federalism, and other aspects of drafting legislation.
Committee sessions and work have also been forums for forming
working relationships, both within one's own party and across
the aisle. Committees have been a principal source of Congress'
influence over and knowledge of the Executive's administration
of laws. The work and relationships forged in committees have
also traditionally been a bulwark against Congress being misled
by executive officials or lobbyists and an asset in effectively
representing a Member's constituents. If expertise and
relationships are a desirable goal of committee work, it is
challenging to develop them with limited time in Washington and
limited time for a committee's legislative workload.\21\
---------------------------------------------------------------------------
\21\ The House has held several ``civility retreats,'' starting in
the 1990s, in an attempt to help Members and their spouses get to know
each other and decrease some of the acrimony present in debate and
relationships. For the organizers' discussion of the first retreat, see
Representative David Skaggs, ``A Successful Bipartisan Retreat,''
special order speech, Congressional Record, vol. 143, part 3 (March 19,
1997), p. 4337.
---------------------------------------------------------------------------
For Oversight, Delegation to the Public
[The Clean Air Act Amendments of 1970] authorized citizens
or groups to bring suits in Federal courts against either the
administrator, over failure to perform specified duties, or
alleged violators, including government agencies.\22\
---------------------------------------------------------------------------
\22\ ``Clean Air Bill Cleared with Auto Emission Deadline,'' in
Congressional Quarterly Almanac, 1970, vol. XXVI (Washington, DC:
Congressional Quarterly Inc., 1971), p. 475.
One of the most important roles and powers of committees is
their authority to conduct oversight--to learn, with subpoena
authority if necessary, about the conduct of the Executive and
the conduct of private entities or citizens. Oversight is often
conducted in anticipation of lawmaking. The Federal Government
is vast, however, and the Nation complex, so that congressional
committees, even working week after week, would be unable to
keep up with this responsibility.\23\
---------------------------------------------------------------------------
\23\ There is some distinction between committees' oversight and
investigations. Congressional Quarterly's American Congressional
Dictionary defines oversight as:
``Congressional review of the way in which federal agencies
implement laws--for instance, to ensure that they are carrying out the
intent of Congress and to inquire into the efficiency of the
implementation and the effectiveness of the law. The Legislative
Reorganization Act of 1946 defined oversight as the function of
exercising continuous watchfulness over the execution of the laws by
the executive branch.
``The rules of both houses assign this responsibility to their
standing committees and direct them to determine, on the basis of their
reviews, whether laws within their respective jurisdictions should be
changed or if additional laws are necessary. The function is also
sometimes called legislative review.''
Congressional Quarterly's American Congressional Dictionary defines
investigative power as:
``The authority of Congress and its committees to pursue
investigations. Congress's investigative power has been upheld by the
Supreme Court but limited to matters `related to, and in furtherance
of, a legitimate task of the Congress.' Standing committees in both
houses are authorized to investigate matters within their
jurisdictions. Major investigations are sometimes conducted by
temporary select, special, or joint committees established by
resolutions for that purpose.'' Congressional Quarterly's American
Congressional Dictionary, pp. 126; 170-171.
---------------------------------------------------------------------------
Congress, consequently, has enabled the public and the
media to assist it in fulfilling its oversight role. Over the
last 50 years, Congress has created new entities and
requirements, such as inspectors general and the Freedom of
Information Act. These innovations supplemented older entities
and requirements, such as the Government Accountability Office
and publication in the Federal Register. Congress has also
established new oversight mechanisms available to the public.
These include requirements for public participation and for
comment periods on proposed government decisionmaking. They
also include the establishment of Federal causes of action,
such as those included in the Clean Air Act Amendments of 1970,
to take Federal agencies to court over their implementation of
a law,\24\ a traditional inquiry of congressional oversight.
---------------------------------------------------------------------------
\24\ ``To sue in federal court, plaintiffs must have a `cause of
action.' The term has a special, particularized meaning in federal
litigation . . . . In federal litigation . . . a party has a cause of
action only if his or her legal rights have been violated and he or she
has a recognized constitutional and/or statutory right to redress the
violation by bringing an affirmative action in federal court.''
``Chapter 5: Causes of Action,'' in Federal Practice Manual for Legal
Aid Attorneys, ed. Jeffrey S. Guttman (Chicago: Sargent Shriver Center
on National Poverty Law, 2014), at http://federalpracticemanual.org/
node/27.
---------------------------------------------------------------------------
Congressional committees often conduct oversight that
informs Congress and the public, influences governmental and
private behavior, and can lead to the dismissal of Federal
officials or the prosecution of entities and individuals for
criminal violations of law. Oversight has also often led to the
enactment of key Federal laws, such as the Federal Election
Campaign Act Amendments of 1974 following the Watergate
investigations or the Taxpayer Bill of Rights following
investigations of Internal Revenue Service abuses. The Honest
Leadership and Open Government Act followed investigations
surrounding lobbyist Jack Abramoff. Individual Members also
sometimes conduct effective and influential oversight through
their personal offices.
It is challenging to undertake oversight when the time
available is limited. Oversight is the hard work that precedes
government reform, when that is the goal of a Member. It
creates a base of information to identify duplication,
outdatedness, lack of accountability, or unworkability and,
from a different perspective, opportunities for improving,
delegating to other levels of government, or repealing or
reforming laws. Having conducted oversight, as well, proponents
of change are ready with ideas when opportunities for
legislative action arise. Oversight is also another means by
which committee members build deep expertise, establish working
relationships with their colleagues, and attract a national
following for their issues and career paths.
Representational Responsibilities
A Senator faces many challenges in providing representation
and services to a whole State. California, the largest State in
population, is one notable example, where its Senators
represent more than 38 million people. The Pacific Ocean States
far from Washington, DC, are other noteworthy examples: Alaska
has an enormous landmass and Hawaii is an archipelago, so
travel from one part of either State to another part is likely
to require air travel.
A Representative faces different challenges. The average
population of a congressional district is nearly 711,000, based
on the 2010 census, an increase of nearly 64,000 since the 2000
census. Responsiveness to that many constituents can be
difficult for any Representative whose staff has been limited,
since 1975, to 18. A State such as Montana presents a different
challenge for its Representative. Montana's population is too
small, relative to that of other States, for a second
congressional district, leaving the one Representative with a
district of just under 1 million inhabitants in the fourth-
largest State in terms of geographic area.\25\
---------------------------------------------------------------------------
\25\ Kristin D. Burnett, 2010 Census Briefs, Congressional
Apportionment, U.S. Census Bureau, C2010BR-08, Washington, DC, November
2011, p. 1, at http://www.census.gov/prod/cen2010/briefs/c2010br-
08.pdf.
---------------------------------------------------------------------------
In 1970, the population of California was just under 20
million and the average congressional district population was
465,000.\26\ The population changes between this earlier
congressional era and 2010 dramatize the potential growth in
the constituent workload.
---------------------------------------------------------------------------
\26\ 1970 Census of Population, Supplementary Report: 1970
Population of Congressional Districts for the 93rd Congress, U.S.
Census Bureau, Washington, DC, October 1972, p. 2.
---------------------------------------------------------------------------
At the same time that State and district populations were
increasing, the number of a Member's constituents was
outgrowing congressional offices' clerical capacity. Widespread
automation of office equipment and the advent of information
technology came to the rescue on Capitol Hill. Today,
congressional offices and constituents can virtually converse
through Web sites, email, and social media. The deregulation of
airlines and advances in jetliner design and technology enabled
Members of Congress first to become regular travelers to their
States and districts and later to commute to Washington, DC, as
many Members do today.\27\
---------------------------------------------------------------------------
\27\ A sitting Member of Congress, Representative Morris Udall,
published a guide in 1970 for new Representatives. He said this about
Representatives' travel allowance:
``Each member is entitled to compensation for one round trip to his
district per month, plus one additional trip to cover costs of travel
to and from Washington at the beginning and end of each session. Thus,
if Congress is in session nine months during the year, the member is
entitled to reimbursement for ten round trips between the Capitol and
his district. The allowance for one of these is determined at the rate
of twenty cents per mile via the most direct highway route. The
allowance for the other round trips is twelve cents per mile or the
price of commercial travel. No compensation is allowed for
transportation of family or household goods.''
Donald G. Tacheron and Morris K. Udall, The Job of the Congressman:
An introduction to service in the U.S. House of Representatives, 2d ed.
(Indianapolis, IN: The Bobbs-Merrill Co. Inc., 1970), pp. 58-59. At
that time, expenditures for specific activities were tightly regulated
in the House and Senate. The expectation for travel was that Members
would live in Washington and travel home occasionally, as permitted by
expenditure limitations. The extra trip, the 10th trip in the example,
allowed Members who maintained residences in their home district to
travel there at the end of one session and then return to Washington
for the beginning of the next session. (Representative Udall was the
father of Senator Mark Udall and the uncle of Senator Tom Udall.)
---------------------------------------------------------------------------
Using Technology to Steal the March on Constituents
Then:
This is our Flexowriter. The paper tape is pasted together
at the ends to make a continuous loop. The letter is on the
tape, you just position a piece of letterhead under the roller.
After you start a letter, the automatic typing will stop three
times. The first time, you type in the inside address. The
second time, you type in the appropriate salutation. The third
time, the letter will be finished and you load a new piece of
letterhead for the next letter. We have about 350 postcards
from dairy farmers. Get to work.\28\
---------------------------------------------------------------------------
\28\ For some background on Flexowriters, see Lawrence O'Kane,
``Computer a Help to `Friendly Doc,' '' The New York Times, May 22,
1966, available online in ProQuest Historical Newspapers.
---------------------------------------------------------------------------
--A first day on the job in a House
office in 1969
Now:
I have one ambition: to retire before it becomes essential
to tweet.\29\
---------------------------------------------------------------------------
\29\ Tweet quoted in: Patrick Johnson, ``More politicians using
social media including blogs, Facebook and Twitter to connect with
constituents,'' The (Springfield, MA) Republican, March 19, 2010, at
http://www.masslive.com/news/index.ssf/2010/03/
more_politicians_using_social. html.
---------------------------------------------------------------------------
--Then-Representative Barney Frank
Today, it is difficult to imagine that, in 1970, 18 percent
of the American workforce consisted of clerical workers--
typists, stenographers, cashiers, and bookkeepers. These
positions were required to keep up with the volume of paperwork
in offices.\30\ Congressional offices, including committee
offices, were not different, with many House offices having a
staff that was perhaps half professional and half secretarial.
Many Senators' offices had an even larger proportion of
clerical staff. In the American workforce, 79 percent of
clerical workers were women.\31\ Again, the situation was not
different--and was perhaps even more exaggerated--on Capitol
Hill.
---------------------------------------------------------------------------
\30\ Roslyn Feldberg and Evelyn Glenn, ``Clerical Workers,'' in
Working Women: A Study of Women in Paid Jobs, ed. Ann Seidman (Boulder,
CO: Westview Press, 1979), p. 318.
\31\ Ibid.
---------------------------------------------------------------------------
At that time, congressional offices received mail only
through the U.S. Postal Service, with Western Union's then-new
Mailgram composing a relatively small portion of mail volume.
Few constituents called Washington, DC, offices because of the
cost of a long-distance phone call. Something new was beginning
to happen, however. It was called ``grassroots lobbying.''
Proponents or opponents of legislation or programs--those who
wanted to ``ban the can'' (soda and beer cans), ``defund the
SST'' (supersonic transport plane program), strengthen or
loosen auto emission standards, and ``end the war'' (Vietnam
war), for example--started sending large volumes of letters and
postcards to congressional offices and making many phone calls
to them. The representational environment now included larger
State and district populations, increasingly motivated
constituents, and contentious issues and problems not easily
solved (such as the 1973 oil embargo and resulting petroleum
shortages and price shocks). Constituent contact began to
outrun the capacity of congressional offices' clerical
operations.
Congressional offices responded first by acquiring
automated office machines, like the Flexowriter,\32\ and then
began moving through various ever-improving mail management
systems. The Republican majority in the House in 1995 coincided
with new sophistication in information technology for the
office environment and the advent of the World Wide Web (the
Web). Building on the foundation laid by the House
Administration Committee, the new majority on the renamed House
Oversight Committee made widespread standardization, use, and
management of information technology a priority and a
reality.\33\ Senators' offices had gotten an earlier start,
with Senator Mark Hatfield having ``automated information
management systems in his offices on Capitol Hill and in
Oregon'' by the mid-1970s.\34\
---------------------------------------------------------------------------
\32\ Congressional offices were also adopters of autopens.
\33\ For a chronicle of the use of automation and information
technology in the House, see ``Transparency and Technology
Computerization'' in U.S. Congress, House Committee on House
Administration, A History of the Committee on House Administration,
1947-2012, committee print, 112th Cong., 2d sess., 2012, pp. 221-237;
other sections of this committee history also address this topic.
\34\ See U.S. Senate, Senate Historical Office, ``The Senate's Need
to Modernize: The Culver Commission, 1976,'' at http://www.senate.gov/
artandhistory/history/idea_of_the_senate/1976 CulverComm.htm. See also
the recollection of Senator Edward Kennedy's former systems
administrator on the launch of Senator Kennedy's Web site in 1994, the
first of any Member of Congress: Chris Casey, ``20 Years Ago Today--Sen
Kennedy Announces 1st Congressional Website,'' at http://casey.com/
blog/2014/06/02/20-years-ago-today-sen-kennedy-announces-1st-
congressional-website.
---------------------------------------------------------------------------
Congress has come a long way since the House began
electronic voting on January 23, 1973. The first cablecasts of
floor proceedings on C-SPAN began March 19, 1979, for the House
and June 2, 1986, for the Senate.\35\ Gavel-to-gavel coverage
brought Congress to American homes, directly and through debate
excerpts incorporated into televised newscasts. The next great
leap for the public came in the form of the THOMAS Web site
under the aegis of the Library of Congress, which went live on
January 4, 1995. It allowed the public to research for itself
what was happening in Congress. The increased use of
information technology within Congress, such as for the
publication of documents or webcasting, further enabled the
public to keep abreast of congressional activity. The
experience for Members and staff was to hear from constituents
immediately about speeches, votes, and pending legislation on
the floor and in committee.
---------------------------------------------------------------------------
\35\ For a sense of Members' response to being televised, see Linda
Greenhouse, ``Congress; TV: The Senate Grins and Bravely Tries to Bear
It,'' The New York Times, May 2, 1986, at http://www.nytimes.com/1986/
05/02/us/congress-tv-the-senate-grins-and-bravely-tries-to-bear-
it.html. For the interview of a former Representative who was part of a
group that first recognized the potential power of C-SPAN, see PBS,
``The Long March of Newt Gingrich,'' interview with Vin Weber,
Frontline, 1995, at http://www.pbs.org/wgbh/pages/frontline/newt/
newtintwshtml/weber.html.
---------------------------------------------------------------------------
The Web, the widespread use of information technology in
the House and Senate, and the arrival of Members and staff who
had firsthand familiarity as users of information technology
completed a transformation. Congressional offices moved from
trying to keep up with the volume of constituent contacts to
actively engaging constituents.\36\ Although the 20 million
pieces of postal mail sent annually to Congress 20 years ago
have become 300 million communications, mostly emails, sent
annually to Congress today, information technology allows
congressional offices to manage the load. The Congressional
Management Foundation (CMF) has indicated that, with an
appropriate mail management system, ``85% of mail can be
comfortably processed in 5 days or less, using pre-approved
form letters.'' \37\
---------------------------------------------------------------------------
\36\ Members now receive smartphones and other electronic devices
operating within the House and Senate firewalls during their early
orientation. Staff are also issued electronic devices.
\37\ ``Mail Management,'' Congressional Management Foundation
(CMF), at http://www. congressfoundation.org/component/content/article/
107. For a better understanding of the impact of the constituent
communications workload on a congressional office, see CMF,
Communicating with Congress: How Citizen Advocacy Is Changing Mail
Operations on Capitol Hill, Washington, DC, 2011.
---------------------------------------------------------------------------
Congressional Web sites are now universal, although they
vary in their quality and utility to constituents. Members at
first also turned to blogs, and many now have a strong social
media presence. Members' use of video on congressional Web
sites and YouTube is widespread, and they employ other
technology to conduct remote ``townhalls'' and meetings with
constituents.\38\
---------------------------------------------------------------------------
\38\ For an exploration of Members' use of information technology
and social media in their constituent service, see the companion CRS
centennial report in this volume, Tweet Your Congressman: The Rise of
Electronic Communications in Congress, by Matthew E. Glassman.
---------------------------------------------------------------------------
Another CMF study found that Representatives rate ``staying
in touch with [their] constituents'' as most critical to their
job satisfaction.\39\ As former Representative Lee Hamilton has
noted, however, legislators enter these exchanges with one hand
tied behind their backs:
---------------------------------------------------------------------------
\39\ CMF, Life in Congress: The Member Perspective, Washington, DC,
2013, pp. 24-26. For a perspective on how the public views Congress,
however, see the companion CRS centennial report in this volume,
Understanding Congressional Approval: Public Opinion from 1974 to 2014,
by Jessica C. Gerrity.
I do know--on the basis of several thousand public meetings
over three decades--that the lack of public understanding about
the institution is huge.
That lack of understanding among ordinary Americans
concerns me deeply because it increases the public's suspicions
and cynicism about the Congress, weakens the relationship
between voters and their representatives, makes it harder for
public officials to govern, and prevents our representative
democracy from working the way it should.\40\
---------------------------------------------------------------------------
\40\ Lee Hamilton, ``What I Wish Political Scientists Would Teach
about Congress,'' PS: Political Science & Politics, December 2000, p.
757.
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Keeping Danger at Bay: Security for Congress
[Tuesday, November 8, 1983] An explosion apparently caused
by a bomb shook the Senate side of the Capitol Monday night,
ripping out the mahogany doors leading to the office of the
Senate minority leader and filling the corridors with smoke . .
. . A group calling itself the Armed Resistance Unit claimed
responsibility for the explosion in a telephone call to The
Washington Post . . . . The motive was to protest the American-
led invasion of Grenada . . . .
The explosion occurred three weeks after a tourist walked
into the House gallery with a homemade bomb under his shirt.
The police arrested the man . . . . [He] wanted to address
Congress about world hunger . . . .
Monday night's explosion was not the first at the Capitol.
In 1971, a dynamite bomb went off in an unmarked first-floor
bathroom, also on the Senate side. It crumbled walls and
shattered windows . . . . The Weather Underground, a radical
group, later claimed responsibility . . . and said it was a
protest against ``the Nixon involvement in Laos.'' \41\
---------------------------------------------------------------------------
\41\ Robert Pear, ``Bomb Explodes in Senate's Wing of Capitol; No
Injuries Reported,'' The New York Times, November 8, 1983, at http://
www.nytimes.com/1983/11/08/us/bomb-explodes-in- senate-s-wing-of-
capitol-no-injuries-reported.html.
By their status, public officials and public buildings are
targets of people with malicious intent. The excerpt above
lists three events, one in 1971 and two in 1983. Yet, examples
of violence against Members of Congress and the Capitol complex
go back further. One of the most notorious occurred March 1,
1954, when four Puerto Rican nationalists opened fire from the
House gallery on Members on the floor. Five Representatives
were wounded, one critically, but all survived.\42\
---------------------------------------------------------------------------
\42\ U.S. House, Clerk of the House, History, Art & Archives,
Historical Highlights, ``Four Puerto Rican nationalists opened fire
onto the House Floor,'' at http://history.house.gov/Historical-
Highlights/1951-2000/Four-Puerto-Rican-nationalists-opened-fire-onto-
the-House-Floor. An interesting footnote to this event is that two of
the House pages who helped evacuate injured Members were Bill Emerson
and Paul Kanjorski, future Representatives from Missouri and
Pennsylvania, respectively. Ibid.
---------------------------------------------------------------------------
Despite that tragedy and succeeding events, an amazing
trait of that period was how open the Capitol complex remained
and how unobtrusive security was. The East Plaza was
essentially a parking lot, which did not change until
construction began for the Capitol Visitor Center. During the
evening in that earlier time, a visitor could drive onto the
East Plaza, park, and walk around the Capitol, taking in the
view of the Mall and the city under the night sky. A visitor
could also enter the Capitol at night to sit in the House or
Senate gallery when these Chambers were in session or drive
into the Russell Building courtyard, although a Capitol Police
officer would probably ask the visitor to state his or her
business. During the day, most areas of the Capitol itself were
open to unaccompanied visitors. Congressional staff were issued
an ID, which most kept in their desks as mementos of their time
in a congressional office.
Security was unobtrusive. The Capitol Police comprised
professional officers and part-time staff, one of whom was
future Majority Leader Harry Reid. Then-private citizen Reid's
experience as an officer in the 1960s was a common one among
the Capitol Police officers of those decades. The Washington,
DC, area law schools had both day and night programs. A number
of the officers, like Senator Reid, were young men enrolled in
law school, taking advantage of the day and night class
offerings. They supported themselves and their families by
working part time as Capitol Police officers. It was a common
sight to walk around the Capitol complex, especially in the
evenings, and see officers at desks reading their
casebooks.\43\
---------------------------------------------------------------------------
\43\ U.S. Senator Harry Reid, ``About Senator Harry Reid,''
biographical statement, 2014, at http://www.reid.senate.gov/about.
---------------------------------------------------------------------------
Security began to increase in the 1980s. Three events
seemed to be turning points in how Members' concerns changed
and how contemporary security measures took root. The first
occurred July 24, 1998, when Officer Jacob Chestnut and
Detective John Gibson of the Capitol Police were killed in the
line of duty seeking to protect people in the Capitol from a
mentally disturbed gunman. The second momentous event was the
terrorist attacks of September 11, 2001, and the crash of
United Airlines Flight 93 near Shanksville, Pennsylvania. It is
believed that the Capitol was the terrorists' target.\44\
---------------------------------------------------------------------------
\44\ National Park Service, Sources and Detailed Information,
``Flight 93 National Memorial, Pennsylvania,'' September 12, 2014, at
http://www.nps.gov/flni/historyculture/sources-and- detailed-
information.htm.
---------------------------------------------------------------------------
The final event personalized the danger for every Member of
Congress--the attempted assassination of Representative
Gabrielle Giffords on January 8, 2011. Representative Giffords
was left critically injured, 13 others were injured, and 6 were
killed. Representative Giffords was conducting a constituent
event in her district, outside a grocery store in suburban
Tucson, Arizona. Representative Giffords called this kind of
event ``Congress on Your Corner,'' and it was the kind of event
and kind of danger to which every Member of Congress could
relate.\45\
---------------------------------------------------------------------------
\45\ ``This Day in History--Jan 8, 2011: Congresswoman Gabrielle
Giffords injured in shooting rampage,'' History, at http://
www.history.com/this-day-in-history/congresswoman-gabrielle- giffords-
injured-in-shooting-rampage.
---------------------------------------------------------------------------
Strengthening security for Members has become essential.
The presence and watchfulness of the Capitol Police is manifest
throughout the Capitol complex. The construction of the Capitol
Visitor Center, street closings, and the diversion of trucks
and buses from neighboring streets offer additional security.
Security or security procedures have been extended to Members
traveling as groups, to individual Members who have been
threatened, to congressional leaders, and to State and district
offices. Anyone but a Member entering a building in the Capitol
complex must be screened. Visitors may enter the Capitol for
public tours only through the Capitol Visitor Center or, if
they have business in the Capitol, when escorted.\46\ Members,
staff, and visitors are safer.
---------------------------------------------------------------------------
\46\ Certain regular visitors to the Capitol, such as reporters,
are credentialed.
---------------------------------------------------------------------------
Members' continuing concern seems to be less about their
own safety than the openness of the Capitol complex to
visitors. One Member summarized many Members' views: ``It's
always safest just to not let people in. And this is the
people's House. You can't have that.'' \47\ As the people's
representatives, Members do not want to cut themselves off from
the public or to exclude the public from the Capitol or
congressional office buildings. Yet, security officials'
concerns continue. A former Senate Sergeant at Arms, who was
also the former chief of the Capitol Police, has said:
---------------------------------------------------------------------------
\47\ Representative Jason Chaffetz, quoted in: Chad Pergram, ``The
Speaker's Lobby: Intruder Alert,'' Fox News, September 24, 2014.
The tough position law enforcement has with these iconic
sites is how you balance making it very open yet defending
against anything. The big difference is that the White House
has a fence. That gives you a chance to respond. You can get
right up to the edge of the Capitol. To me, it makes a lot more
sense on [Capitol] Hill to put a fence around the four corners.
And then you have free access to the entire complex and not
worry about a knife or a gun or a suicide bombing.\48\
---------------------------------------------------------------------------
\48\ Terrance Gainer, quoted in: ibid.
---------------------------------------------------------------------------
Political Responsibilities
As a concept, politics encompasses more than running for
office or trying to get majority support for a vote in the
House or Senate. For most people today, ``political system''
might better describe the larger concept. Among the many
changes within the political system between the eras under
comparison, two aspects stand out because of the exponential
growth of their size and impact.
Campaigns have expanded greatly in several ways. Candidates
are almost never their own campaign managers. Campaign staffing
no longer solely comprises volunteers, and advertising no
longer consists largely of yard signs and newspaper
endorsements. It is unlikely an individual running for Congress
today would be able to compete for election if he or she made a
decision or announcement to run just before Labor Day of
election year, the long-ago traditional start of active
campaigning.\49\
---------------------------------------------------------------------------
\49\ Special circumstances, however, could affect the start of a
campaign, such as the death or resignation of a candidate or a
nominee's late decision not to run.
---------------------------------------------------------------------------
Although volunteers, perhaps numbering in the hundreds or
thousands, are indeed vital to a modern campaign's success, a
full-time, professional apparatus is also essential to a
campaign today. This apparatus includes campaign managers,
pollsters, media consultants (including a creative team and
media buyers), social media specialists, webmasters, direct
mail specialists, volunteer coordinators, fundraisers,
treasurers, and others. A campaign must buy tv and radio
advertising, and it must place advertising in numerous places--
on billboards, in newspapers, on Web sites and in social media,
and elsewhere. A candidate needs to travel around the State or
district, perhaps by plane or campaign bus. Candidates may need
to fly out of State to attend fundraisers and meet national
party officials in Washington, DC. A campaign takes money--an
increasing sum of money, it seems, in each successive primary
and general election.
In the earlier era, once elected to Congress, a Member
would be most visible in his or her legislative work and
constituent service, for most of 2 years if serving as a
Representative or at least 4 years if serving as a Senator,
before facing the voters again. Congress in the 1970s often did
not adjourn until mid- or late October before an election.
Today, by contrast, incoming Members often hold fundraisers
during Congress' early organization meetings.
The Daily Grind of Fundraising
[Then four-term U.S. Senator William] Proxmire spent
$145.10 in breezing to reelection in 1982.\50\
---------------------------------------------------------------------------
\50\ The Associated Press, ``Trying to Succeed Frugal Proxmire,
Candidates Spend Freely,'' The New York Times, September 12, 1988, at
http://www.nytimes.com/1988/09/12/us/trying-to- succeed-frugal-
proxmire-candidates-spend-freely.html.
In today's campaign argot, one would probably say that
Senator Proxmire had a strong brand. He did. However, he
initially ran in 1957.\51\ He won his early elections when tv
advertising for a congressional campaign was unheard-of. There
were three networks and no cable, people were still acquiring
their first-ever tv sets, newspapers dominated as people's
source of information, and reporting was respectful of
officeholders. It was relatively easy for a major-party
candidate to become known. Senator Proxmire also found ways to
stand out among his colleagues. For example:
---------------------------------------------------------------------------
\51\ Senator Proxmire was first elected in a special election for a
vacancy caused by the death of Senator Joseph McCarthy.
Even though he regularly wins re-election with more than 60
percent of the vote, Proxmire acts like a man constantly on the
verge of electoral extinction. He is almost always perceived to
be campaigning, whether he is shaking a thousand hands over a
weekend in Wisconsin or pleading for dairy price supports on
the Senate floor.\52\
---------------------------------------------------------------------------
\52\ ``Wisconsin--Senior Senator: William D. Proxmire,'' in
Politics in America, Members of Congress In Washington and At Home, ed.
Alan Ehrenhalt (Washington, DC: Congressional Quarterly Inc., 1983), p.
1636.
By the time Senator Proxmire ran for reelection in 1982, he
had already served in the Senate for 26 years. He had been
chair of the Committee on Banking, Housing, and Urban Affairs
and was known nationally for the Golden Fleece Award.\53\ He
also had a strong network of State supporters. Senator Proxmire
had a solid brand in Wisconsin and, as a result, won reelection
with nearly 65 percent of the vote after having spent just
$145.10.\54\
---------------------------------------------------------------------------
\53\ An ``award'' the Senator handed out monthly to draw attention
to an activity he considered to be wasting tax dollars.
\54\ ``Wisconsin--Senior Senator: William D. Proxmire,'' in
Politics in America, Members of Congress In Washington and At Home, p.
1636.
---------------------------------------------------------------------------
Six years later, Senator Proxmire did not seek reelection.
In the 1988 election cycle, the average winning Senate
candidate spent $3,746,225. Senator Proxmire's campaign
spending was an anomaly among Senate races in 1982; it was a
historical event by 1988. In the 2012 election cycle, the
average winning Senate candidate spent $10,351,556, and the
average winning House candidate spent $1,596,953.\55\
---------------------------------------------------------------------------
\55\ In 2014 constant dollars, the amount spent in 1988 was
$7,533,617. For information on campaign finance and, over the last
century, election campaigns for Congress, see the companion CRS
centennial report in this volume, The Unchanging Nature of
Congressional Elections, by Kevin J. Coleman and R. Sam Garrett.
---------------------------------------------------------------------------
In the earlier congressional era, incumbents, challengers,
and candidates for open seats spent relatively little time on
fundraising. Campaigning was largely grounded in a corps of
volunteer supporters. It relied to a great extent on
inexpensive advertising, like lawn signs, and on free media
coverage of a campaign. Information sources were exponentially
fewer than today, and it was easy for a potential voter to
learn about candidates from those sources. Candidates, with
free media coverage, faced little information clutter to break
through. Retail politics (in those days, ``shoe leather''
politics) was ascendant, although parties and patronage still
played important roles in some States and districts. Split-
ticket voting was relatively common.\56\
---------------------------------------------------------------------------
\56\ See, for example, Robert J. Dinkin, Campaigning in America: A
History of Election Practices (New York: Greenwood Press, 1989), pp.
159-180.
---------------------------------------------------------------------------
Members of Congress and candidates for Congress face a much
different campaign environment today. In the intervening years,
network and cable television have become important to all
congressional campaigns. In expensive, high-population media
markets, a campaign will buy time even though the cost can be
daunting. Yet, some portion of that advertising is perceived as
being ``wasted'' on voters living in the same media market but
in a different State or district. These disadvantages drive
campaigns to find additional channels to reach voters, for
example, with tailored messages to targeted viewers of specific
cable channels, and, now, through social media and the use of
campaign software. The challenge for candidates today is to
break through the information clutter and obtain attention from
voters in their busy lives. Advertising, and specifically tv
advertising, composes the largest budget item for most
campaigns.\57\
---------------------------------------------------------------------------
\57\ See, for example, Joseph Mercurio, ``Media Buying in Political
Campaigns: Broadcast Television Remains King,'' Campaigns & Elections,
February 28, 2011, at http://www.campaignsand elections.com/magazine/
1910/media-buying-in-political-campaigns-broadcast-television-remains-
king.
---------------------------------------------------------------------------
The campaign season is also longer. A candidate, including
a sitting Member running for reelection, now typically
announces that he or she is running early in the election year
or perhaps earlier than that. The candidate may also need to
run two campaigns, a primary campaign and, if successful, a
general election campaign. Over the last decades, many States
have moved primaries earlier in the year, and few States still
hold congressional primaries in September of the election year.
Sitting Members running for reelection are therefore trying to
keep up with legislative work and voting while running in a
possibly contentious primary. An earlier primary also means
campaigning must begin in the year prior to the election year.
In addition, Senate campaigns have become so expensive that
Senators have found it necessary to raise funds through all 6
years of their terms. Candidates for the Senate often make a
decision to run around the time of the preceding election.
At least three other factors have pushed the start date of
campaigns earlier. First, outside groups have begun advertising
their views about candidates early in the election year,
attempting to bolster or tear down a candidate. A candidate who
waits to respond risks voters' impressions hardening. Second,
some States begin early voting in September, and most States
that have early voting begin in October. As a result, there is
not a time in contemporary campaigning at which a candidate may
make a closing argument to voters. He or she must make closing
arguments prior to early voting and all through the last weeks
of the campaign prior to election day. The candidate must also
have a strategy for ``turning out'' early and absentee voters.
Third, candidates receive advantageous advertising rates on
television early in an election year and find it beneficial to
reserve time for the autumn in advance.
Candidates, including candidates with a legislative record
in Congress or a State legislature, face two other challenges:
to be noticed by voters and to control the campaign narrative.
The former might be accomplished by the quantity and quality of
advertising, and the latter might be accomplished with deftness
in responding to opponents' advertising. Party and independent
groups advertising for and against the candidate offer an
opportunity in their support and a threat in their opposition.
To break through and control a campaign narrative, the
candidate must be well funded.
In addition to fundraising for one's own campaign,
incumbent Members are expected to raise money ``for the team''
by contributing substantially to the relevant party and Chamber
campaign committees. Many Members also have their own
leadership PAC (political action committee), which is separate
from their campaign account. Leadership PACs provide Members
with another channel for assisting incumbent colleagues or
their party's candidates. Fundraising can be a factor in a
Member being selected for a Chamber or committee leadership
position.
All of these factors, and others, require a Member of
Congress or a candidate for Congress to raise a large amount of
campaign funds.\58\
---------------------------------------------------------------------------
\58\ See, for example, Kate Ackley, ``Despite Trips, No Downtime
for Donors,'' Roll Call, June 5, 2013, p. 14.
---------------------------------------------------------------------------
When in Washington, DC, Members of Congress spend time
fundraising. A Member visits his or her political party's
building near Capitol Hill to make fundraising phone calls,
make fundraising contacts by an electronic medium, or attend
fundraising receptions. Members make calls and contacts on
their own behalf or on behalf of their party. Fundraising
cannot be conducted in a Federal building, including using a
telephone in a Federal building.
Receptions and other forms of fundraisers (e.g., at
sporting or entertainment events) are scheduled nearly every
day that Members are in Washington. They take place at
locations throughout the city, in both the morning and evening.
A Member might hold or be the beneficiary of a fundraiser, or
he or she might sponsor or cosponsor a fundraiser for a
colleague or party candidate. Contributors are attracted to
contribute to a candidate and attend a reception when several
Members of Congress will be in attendance, sometimes listed as
sponsors of the reception. Members are expected to engage in
this collegial activity, especially because they may want their
colleagues' reciprocity.
Members must also spend time fundraising when they are in
their home States or districts, seeking to ensure that a solid
percentage of their campaign funds is raised within their home
State and thereby demonstrating local support. As mentioned
above, candidates for Congress might also travel to other
States for fundraising meetings and events.
Interestingly, the Congressional Management Foundation
(CMF) survey for its Life in Congress study found that 43
percent of Representatives believed ``they spend too little
time on political/campaign work.'' \59\ Respondents to CMF's
questionnaire also indicated that they spent 17 percent of
their time in Washington, DC, and 18 percent of their time in
their districts on political/campaign work.\60\ Of course,
``political/campaign work'' includes more than fundraising. The
number of respondents to CMF's survey was small, relative to
the size of the House, but participation by Members in their
first three terms was relatively significant.\61\ In some news
reports, Members have variously stated that they relish,
endure, or dislike the activity of fundraising and the amount
of time that it takes.\62\
---------------------------------------------------------------------------
\59\ CMF, Life in Congress, pp. 24-25.
\60\ Ibid., p. 18.
\61\ Median service in the House is three terms.
\62\ See, for example, Tracy Jan, ``For freshman in Congress, focus
is on raising money,'' The Boston Globe, May 12, 2013, at http://
www.bostonglobe.com/news/politics/2013/05/11/freshman-lawmakers-are-
introduced-permanent-hunt-for-campaign-money/YQMMMoqCNxGKh2h0tOIF9 H/
story.html.
---------------------------------------------------------------------------
Fundraising takes the time and personal attention of
Members, which has consequences for the legislative process.
For example, as one group of former Members, current and former
congressional staff, scholars, and other Congress-watchers
observed:
Schedules, processes and procedures within the Congress are
designed to accommodate members in pursuit of their reelection
goals, enabling them to devote maximum time to raising
necessary campaign funds, mending fences and building political
support back home.\63\
---------------------------------------------------------------------------
\63\ Donald R. Wolfensberger, Getting Back to Legislating,
Bipartisan Policy Center & The Woodrow Wilson Center, Washington, DC,
November 27, 2012, pp. 1-2. See also Kate Ackley, ``Who Has Time for
Legislating Anyway?,'' CQ Roll Call, July 16, 2014, pp. 3, 11.
The schedules mentioned in this observation seem to refer
to the time allowed in the congressional schedule for
representational responsibilities and fundraising. The
processes and procedures alluded to appear to refer to the
types of legislation the majority brings to the House and
Senate floors and to the types of amendments minority-party
Members seek to offer or the procedural tactics they employ.
Distinctions between the parties in their policy preferences,
coherence within the parties, and strong party leadership
generate voter interest and passion.\64\
---------------------------------------------------------------------------
\64\ See the companion CRS centennial report in this volume, The
Evolving Congress: Overview and Analysis of the Modern Era, by Walter
J. Oleszek.
---------------------------------------------------------------------------
In seeking to explain this development, one scholar noted
the connection between Woodrow Wilson's famed book,
Congressional Government, originally published in 1885, and
Speaker Newt Gingrich's changes to the institutional management
of the House:
Wilson's book reads like a field manual for Gingrich's
experiment in congressional party government . . . . The
Woodrow Wilson of Congressional Government and Speaker Newt
Gingrich both admired the parliamentary ideal and tended to see
Congress as central to our constitutional system, with
presidents as mere administrators . . . . Both Wilson and
Gingrich disliked standing committee dominance of the
legislative process and sought to elevate the role of
legislative parties.\65\
---------------------------------------------------------------------------
\65\ William F. Connolly, Jr., ``Introduction,'' Congressional
Government: A Study in American Politics (1885; Piscataway, NJ:
Transaction Publishers, 2002). For an explanation and discussion of
conditional party government and of earlier actions by the House
Democratic Caucus that presaged changes made by Speaker Gingrich, see
John H. Aldrich and David W. Rohde, ``The Logic of Conditional Party
Government: Revisiting the Electoral Connection,'' at http://
themonkeycage.org/wp-content/uploads/2011/07/aldrich-and-rohde.pdf.
A Pew Research study released in June 2014 entitled
Political Polarization in the American Public found that
respondents who were most consistently liberal (12 percent of
the public) and most consistently conservative (9 percent of
---------------------------------------------------------------------------
the public) were--
[on] measure after measure--whether primary voting, writing
letters to officials, volunteering for or donating to a
campaign . . . more actively involved in politics, amplifying
the voices that are least willing to see the parties meet each
other halfway.\66\
---------------------------------------------------------------------------
\66\ Pew Research Center for the People & the Press, Political
Polarization in the American Public, Washington, DC, June 12, 2014, at
http://www.people-press.org/2014/06/12/political- polarization-in-the-
american-public. In addition, The New York Times reported:
``For all the talk about how partisan polarization is overwhelming
Washington, there is another powerful, overlapping force at play:
Voters who are not deeply rooted [in a geographic place] increasingly
view politics through a generic national lens.''
Ashley Parker and Jonathan Martin, ``Population Shifts Turning All
Politics National,'' The New York Times, June 15, 2014, at http://
www.nytimes.com/2014/06/16/us/population-shifts- turning-all-politics-
national.html.
A Member's experience in the legislative process, then, is
likely to be part of a cycle of reinforcement between actions
in the Member's Chamber and passion among those voters who are
a party's most active and strongest supporters and who also are
its most liberal or most conservative adherents.\67\
---------------------------------------------------------------------------
\67\ For most Members of both parties, this cycle of reinforcement
will appear politically well grounded. One analysis of the 2012
election showed there are only 26 congressional districts in which
voters supported President Obama or Mitt Romney but elected a
Representative of the opposite party (17 districts that Obama won and 9
districts that Romney won). Clark Bensen, Presidential Results by
Congressional Districts, Politidata, Corinth, VT, April 4, 2013, p. 3.
A National Journal study found there were only 2 Democratic
Representatives in the 113th Congress who were more conservative than
the most liberal Republicans and only 3 Republicans who were more
liberal than the most conservative Democrats. There was no overlap
among Senators. Josh Kraushaar, ``The End of Moderation,'' National
Journal, February 8, 2014, pp. 22-23. Census data and campaign software
have also provided legislators and others planning redistricting with
sensitive tools to seek, if desired, a partisan tilt in a State's
districts.
---------------------------------------------------------------------------
Yet, Members find many voters unhappy with this cycle of
reinforcement. As the Pew study noted, 46 percent of Democrats
and Democratic-leaners (Americans who ``have attitudes and
behaviors that are very similar to those of partisans'') and 50
percent of Republicans and Republican-leaners prefer an outcome
on policy issues between President Obama and congressional
Republicans ``to split the difference at exactly 50/50.'' \68\
Political scientist Gary Jacobson explained the problem for
Members and candidates and for all who watch Congress:
---------------------------------------------------------------------------
\68\ Pew Research Center for the People & the Press, Political
Polarization in the American Public.
[The political center] does not form a potentially coherent
coalition around which some political entrepreneur might build
a centrist party. People in it are more susceptible to short-
term political tides (because they are less partisan and
ideological) and thus help to swing elections.\69\
---------------------------------------------------------------------------
\69\ Quoted in: Don Balz, ``What's left of the political center?,''
The Washington Post, July 16, 2014, p. 2. This cycle of reinforcement
might be part of the explanation for public approval of Congress, which
is explored in the companion CRS centennial report in this volume,
Understanding Congressional Approval: Public Opinion from 1974 to 2014,
by Jessica C. Gerrity.
---------------------------------------------------------------------------
Getting It from All Sides: Lobbying Inside and Outside Washington, DC
Some Congressmen reacted furiously when antiwar lobbyists
recently published their non-record votes on key amendments
offered by doves to a defense bill. [Prior to a House rules
change in 1971, recorded votes were not taken in the Committee
of the Whole; so-called gallery watchers attempted to record
Representatives' positions as the Members filed past tellers
(Members or clerks serving as vote counters) to be counted for
and against amendments.]
``I received your stupid letter in which you indicated that
your snoopers who were sitting in the House gallery during
debate on the military procurement bill recorded me as being
absent on five different votes.'' \70\
---------------------------------------------------------------------------
\70\ Letter from unnamed Member to an antiwar lobbyist, quoted in:
Norman C. Miller, ``Some in House Seek To End Practice of Nonrecord
Voting,'' Wall Street Journal, June 18, 1970, pp. 1, 3.
Until the 1970s, lobbying was largely quiet, behind-the-
scenes, and reactive. There were also relatively few
practitioners. Members learned of the views of the AFL-CIO, the
U.S. Chamber of Commerce, the Farmers Union, and other trade
associations through hearings testimony and quotations in
newspapers. Members and their spouses might be entertained at
dinners, on weekend trips to hunting lodges, at golf clubs, and
in other ways. Members could accept honoraria and travel
expenses for speeches and appearances at meetings, conventions,
and other gatherings of trade associations, and other
groups.\71\ A former Member, reflecting on changes to
congressional ethical norms, mentioned some of the forums for
Member-lobbyist interactions in that era:
---------------------------------------------------------------------------
\71\ For one Senator's perspective on lobbying and its history, see
U.S. Congress, Senate, The Senate, 1789-1989, Addresses on the History
of the United States Senate, by Senator Robert C. Byrd, 100th Cong.,
1st sess., S. Doc. 100-20, vol. II (Washington: GPO, 1991), pp. 491-
508. See also a Member's perspective in 1970 on home-State lobbyists
and Washington lobbyists in Donald G. Tacheron and Morris K. Udall, The
Job of the Congressman, pp. 85-89.
Golf outings, vacations in the islands with honoraria-
attached speeches, dinners at Washington's best restaurants,
and entertainment at the Kennedy Center are all part of the
past now. Honoraria for speeches ended with the last large
congressional pay raise for House members . . . . More
recently, the House became totally spooked by adverse publicity
regarding influence peddling and cut off accepting lunches and
dinners.\72\
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\72\ G. William Whitehurst, ``Lobbies and Political Action
Committees; A Congressman's Perspective,'' in Inside the House: Former
Members Reveal How Congress Really Works, ed. Lou Frey, Jr. and Michael
T. Hayes (Lanham, MD: U.S. Association of Former Members of Congress
and University Press of America, 2001), p. 211. The first ban on
honoraria, alluded to in the text, took effect in 1991.
Lobbying was already beginning to change, however. New
issues had arisen, with new ways of bringing congressional
attention to them, and many new actors began lobbying. Two
books helped initiate these changes: The Other America: Poverty
in the United States, by Michael Harrington, published in 1962,
and Unsafe at Any Speed, by Ralph Nader, published in 1965. The
former contributed to President Lyndon Johnson's War on
Poverty, and the latter contributed to a new law, the National
Traffic and Motor Vehicle Safety Act of 1966. Both books helped
stimulate the launch of ``public interest'' organizations and
lobbying for laws and regulatory actions favorable to
consumers, the environment, low-income people, women's rights,
and other interests that had not previously been widely
represented in Washington, DC. Public interest lobbying drew
new people to Washington to work on behalf of many causes, with
the so-called Nader's Raiders emblematic of the new actors.\73\
---------------------------------------------------------------------------
\73\ In response to a damning ``Nader's Raiders'' report on the
Federal Trade Commission, President Richard Nixon asked the American
Bar Association to evaluate the commission's activities and make
recommendations. For background on these events, see Arthur John Keefe,
``Is the Federal Trade Commission Here To Stay?,'' American Bar
Association Journal, February 1970, p. 188. One of the Raiders listed
in the article was the future son-in-law of President Nixon and future
chair of the Republican Party in New York; another was the great-
grandson of President William Howard Taft and a future general counsel
of the Department of Defense; and yet another was a future member of
the Nuclear Regulatory Commission. For current examples of public
interest lobbying, see, for example, Fawn Johnson, ``Lessons of
Lobbying,'' National Journal, January 7, 2012, p. 42.
---------------------------------------------------------------------------
In response to the legislative activism of the 1970s, trade
associations, businesses, and other groups drew on their long
histories and on the strategies of the public interest groups
to become proactive. More businesses opened their own lobbying
offices, not relying solely on trade associations. Trade
associations, businesses, and other groups formed coalitions
around single issues.\74\ They organized their own grassroots
lobbying, including ``fly-ins'' for State or district
residents, such as nurses, auto dealers, or independent
bankers, to lobby their own Members of Congress in Washington
on their specific set of policy concerns.\75\
---------------------------------------------------------------------------
\74\ Representatives of foreign governments and businesses have
long had a presence in Washington lobbying and are regulated under the
Foreign Agents Registration Act (FARA) and other laws. A recent article
explained a newer aspect of foreign agents' lobbying in their funding
or contracting with U.S. think tanks. See Eric Lipton, Brooke Williams,
and Nicholas Confessore, ``Foreign Powers Buy Influence At Think
Tanks,'' The New York Times, September 7, 2014, pp. 1, 22.
\75\ See, for example, Byron Tau and Anna Palmer, ``Boggs Helped
Create the Modern World of Lobbying,'' Politico, September 16, 2014,
pp. 1, 33; and Kate Ackley, ``Special Interests Descend on the Hill,''
CQ Roll Call, April 2, 2012, at http://www.rollcall.com/issues/57_119/
street-talk-special-interests-descend-on-capitol-hill-213586-1.html.
---------------------------------------------------------------------------
The purpose of lobbying is straightforward--to persuade one
or more Members of Congress to take a legal action, such as to
obtain or prevent sponsorship of a bill or amendment or to vote
for or against a proposition in committee or on the floor.
Citizens and Members of Congress can lose track of the value of
lobbying. Yet, for lobbyists and the interests they represent,
critical matters are at stake, such as a company's ability to
make a profit, a labor union's advocacy for workers' rights,
disabled citizens' access to transportation, a citizen group's
desire for a sufficient water supply, a municipality's access
to a Federal grant, a small business' ability to compete for a
Federal contract, and so on.
Reactive lobbying has evolved today to become targeted
media campaigns on specific issues, bills, nominations, and
votes. From each lobbyist's perspective, irrespective of the
business, public, or other interest represented, Members and
their constituents must read and hear about their principal's
concerns or perspectives both in Washington and in their home
districts and States.\76\
---------------------------------------------------------------------------
\76\ See, for example, Thomas B. Edsall, ``The Unlobbyists,'' The
New York Times, December 31, 2013, at http://www.nytimes.com/2014/01/
01/opinion/edsall-the-unlobbyists.html?module=Search
&mabReward=relbias%3Aw%2C(%221%22%3A%22RI%3A6%22).
---------------------------------------------------------------------------
When they are working in Washington, Members are recipients
of direct lobbying, both by professional lobbyists and by home
State members of national and State groups. The latter might be
participating in a fly-in or in a national convention being
held in Washington. Members in Washington also see the results
of grassroots lobbying campaigns in their emails, letters, and
social media exchanges.\77\ As noted above (see ``Using
Technology to Steal the March on Constituents''), Members and
their staffs must manage and respond to constituents' contact.
---------------------------------------------------------------------------
\77\ See, for example, Holly Yeager, ``The changing business of
influence,'' The Washington Post, February 23, 2014, pp. G1, G5; and
Thomas B. Edsall, ``The Shadow Lobbyist,'' The New York Times, April
25, 2013, at http://opinionator.blogs.nytimes.com/2013/04/25/the-
shadow-lobbyist/?module=Search&
mabReward=relbias%3Aw%2C(%221%22%3A%22RI%3A6%22).
---------------------------------------------------------------------------
In the last two decades or more, however, Members have
spent more time in their States and districts. Technology has
also advanced, allowing lobbying campaigns to reach like-minded
constituents and seek their action at just the right time.
Organizations that lobby or assist in lobbying campaigns have
also grown in sophistication. In combination, these changes
have resulted in lobbying campaigns to influence Members being
waged as much in States and districts as in Washington.
One of the earliest and best-known national campaigns of
this sort was waged in opposition to President Bill Clinton's
health care reform plan in 1993 and 1994 by the Health
Insurance Association of America. In the series of ``Harry and
Louise'' ads, which ran on television and were featured in
radio and newspaper formats, the actors expressed their
concerns over the President's proposal and urged viewers to
express theirs.
These lobbying campaigns have also been localized and
targeted at specific Members viewed as persuadable to support
or oppose a proposition or as able to be pressured if enough
constituents were persuaded by a media campaign to make their
views known to the Member. These media campaigns occur year
round as different issues come to the fore and have been
financed by national and State political parties, interest and
advocacy groups, and individuals or groups of individuals of
all political stripes. Other groups employ an array of tools in
their efforts to ensure orthodoxy and consistency in Members'
legislative actions, consistent with the political views of
these Democratic or Republican groups.\78\
---------------------------------------------------------------------------
\78\ See, for example, Josh Kraushaar, ``Growth Industry,''
National Journal, September 17, 2011, pp. 28-33; Julianna Gruenwald,
``What's Next in the SOPA Opera Melodrama,'' National Journal Daily,
January 23, 2012, at http://www.nationaljournal.com/daily/what-s-next-
in-the-sopa-opera-melodrama-20120122; and Kate Tummarello, ``An Open
Process for OPEN Measure,'' Roll Call, February 6, 2012, pp. 3, 5.
---------------------------------------------------------------------------
An example of a targeted media campaign occurred several
years ago, when legislation was introduced in the Senate to
repeal the Federal estate tax. Radio and television campaigns
were waged in Maine, South Dakota, and Montana in an attempt to
favorably influence public opinion and, through public opinion,
the Senators from those States. As a Senate vote approached, a
group opposed to repeal waged a media campaign in Arkansas,
Montana, and Nebraska in an attempt to influence public opinion
there, and, through it, the Senators from those States.
Lobbying campaigns are abetted by the variety of media
operating today. The media comprise well-educated, aggressive
reporters, editors, bloggers, social media trendsetters, radio
and tv personalities, and other commentators, all of whom can
define issues in ways critical to the success or failure of a
lobbying campaign and quickly publicize upcoming votes,
congressional favors to special interests, positions taken by
Members of Congress, proponents' and opponents' views, and
other information.
With the surge in social media's importance over the last
few years, newer and less expensive channels exist to reach
constituents. Lobbying campaigns ask constituents to contact a
Member, attend a townhall meeting or ``supermarket Saturday,''
or share their views with social media friends. Members take
seriously the letters, postcards, faxes, emails, social media
exchanges, phone calls, office visits, remarks at townhall
meetings, signs at parades, plant visits, and other contacts
they have with constituents.\79\ Although specific individual
communications or office visits might make a compelling case on
a particular issue, Members take note of the volume of
constituent calls and letters as part of their decisionmaking,
even when a lobbyist's grassroots campaign stimulated the
outpouring of constituent communication.\80\
---------------------------------------------------------------------------
\79\ See, for example, Andrew Joseph, ``Transportation Lobbying
Groups Follow Lawmakers Home,'' National Journal, February 24, 2012, at
http://www.nationaljournal.com/blogs/influencealley/2012/02/
transportation-lobbying-groups-follow-lawmakers-home-24.
\80\ For additional discussion of lobbying and lobbying campaigns,
see Judy Schneider and Michael L. Koempel, Congressional Deskbook: The
Practical and Comprehensive Guide to Congress, 6th ed. (Alexandria, VA:
TheCapitol.Net, 2012), pp. 73-83; and Michael L. Koempel and Judy
Schneider, Congressional Deskbook: The Practical and Comprehensive
Guide to Congress, 5th ed. (Alexandria, VA: TheCapitol.Net, 2007), pp.
83-92.
---------------------------------------------------------------------------
Lobbyists have long sought to influence laws that Congress
and the President have already enacted, looking to affect an
existing law's implementation, possible amendment or repeal,
and potential funding. The lobbyists might be acting on behalf
of individuals, groups, municipalities, businesses, and others
that have been directly affected by this exercise of Federal
authority. In the 1960s and 1970s, a second principal purpose
of lobbying emerged as lobbyists become more active in seeking
to prompt Congress and the President to enact new laws.
Inaction is also a decision, and individuals, groups,
municipalities, businesses, and others may be affected by
Congress not having enacted laws on certain subjects.
Personal Impact of Congressional Service
The CMF study of 2013, cited earlier, largely confirmed
what was reported 15 years ago about the work schedule of
Members of Congress in a study by the Pew Research Center for
the People & the Press. In its survey, CMF found that Members
of the House work about 70 hours a week when Congress is in
session and about 59 hours a week when Congress is not in
session. The Pew study in 1998 found that 70 percent of
Senators and Representatives worked 70 or more hours a week.
The CMF study compared Members' work lives with a study of
high-earning, private-sector employees across multiple
industries that appeared in the Harvard Business Review in
2006. A subset of these employees was identified as having
``extreme jobs'' with 70-hour workweeks. Traits of those jobs
that are shared by Members in their work included:
unpredictable flow of work,
fast-paced work under tight deadlines,
work-related events outside regular work hours,
availability to clients 24/7
large amounts of travel, and
physical presence at workplace at least 10 hours a day.\81\
---------------------------------------------------------------------------
\81\ CMF, Life in Congress, pp. 10, 14.
---------------------------------------------------------------------------
In the CMF study, 86 percent of Members responded that they
``feel they spend too little time with family and friends and
too little time on other personal activities.\82\
---------------------------------------------------------------------------
\82\ Ibid., p. 23.
---------------------------------------------------------------------------
Well into the 1990s, the vast majority of Members had
residences in the Washington area, and their families lived
there. Members with children sent them to local public and
private schools. Members socialized with each other and had
friendships in their neighborhoods and among people with whom
they worked or attended religious services, whom they met
through their children's school, who were from the same State,
and so on. Air travel was not particularly easy, and Members
were limited in the number of trips or the spending available
for travel, even to their home States and districts. Perhaps
the most distinctive difference from today's congressional
environment was that Members largely had their weekends to
themselves.
[Now-Senator] Mike Lee and Josh Reid, then both 11-year-old
sons of political fathers transplanted in Washington, quickly
bonded. [Lee was the son of President Ronald Reagan's U.S.
Solicitor General Rex Lee, and Reid was the son of then-
Representative Harry Reid.]
``I've always known since I was 11 years old, when I first
met the man, that we were on opposite sides of the issues,''
Lee added. ``It is weird to now be in the same body as him. I
wouldn't blame him if he still saw me as an 11-year-old.'' \83\
---------------------------------------------------------------------------
\83\ Philip Rucker, ``Sen. Mike Lee: A political insider refashions
himself as tea party revolutionary,'' The Washington Post, February 4,
2011, at http://www.washingtonpost.com/lifestyle/style/sen-mike-lee-a-
political-insider-refashions-himself-as-tea-party-revolutionary/2011/
02/04/AB zV3xQ_story.html.
This situation began to change in the 1990s as Members,
wishing to maintain better contact with their constituents,
began to travel home more frequently. As described earlier,
constituents had become more politically active, which included
wanting to see their Members of Congress face-to-face (see,
above, ``Using Technology to Steal the March on
Constituents''). Air travel became easier and congressional
travel allowances more generous. By the mid-1990s, with the
influx of new Members and the encouragement of some Members
serving in congressional leadership, many Members, particularly
in the House, began to keep their residences in their home
States and districts and commute to Washington. First votes are
now scheduled Monday evenings and last votes Thursday
afternoons or Friday mornings to accommodate Members' travel.
Now, few Representatives live in the Washington, DC, area
with their families.\84\ They rent or share apartments; some
even spend overnights on cots or sofas in their offices. Some
Senators have also made the choice to live in their home States
and commute to Washington. For all Members, some time is spent
almost every week flying to and from Washington.
---------------------------------------------------------------------------
\84\ For some Members, residing with their family in Washington,
DC, is a necessity when travel to their home State or district is time
consuming and their children are very young. See, for example, Fawn
Johnson, ``I Want More Hours in the Day,'' National Journal, July 12,
2012, at http://www.nationaljournal.com/magazine/mcmorris-rodgers-i-
want-more-hours-in-the-day-20120 712.
---------------------------------------------------------------------------
The dearth of personal time in Washington, small number of
social settings involving families, multitude of social
activities involving fundraising, reduced time spent in
committees with relatively small memberships, demands of media
for access, and other changes mean that there are fewer
opportunities for Members to get to know each other well,
especially across the aisle.\85\ This situation concerns many
who are studying Congress and seeking changes or ways that
partisanship could be reduced or the decisionmaking process
enhanced. They believe the fact that many Members do not know
each other well contributes negatively to the contemporary
congressional environment.\86\
---------------------------------------------------------------------------
\85\ For an analysis of what has changed in today's congressional
milieu that affects lawmaking, and why, see the companion CRS
centennial report in this volume, Collaborative Relationships and
Lawmaking in the U.S. Senate: A Perspective Drawn from Firsthand
Accounts, by Mark J. Oleszek.
\86\ See, for example, Commission on Political Reform, Governing in
a Polarized America: A Bipartisan Blueprint to Strengthen Our
Democracy, Bipartisan Policy Center, Washington, DC, July 2014.
---------------------------------------------------------------------------
Something else has changed besides Members' desire to be in
their home State or district, and their constituency's demand
for their presence. In proposing changes to the congressional
schedule or Members' opportunities to get to know each other
better, the effect on Members' families must be considered. For
example, some have proposed a scheduled change of 3 weeks a
month of work in Washington and 1 week a month back in a
Member's home State or district. That model may not work for
Members and their families.
In the 1970s, the spouses of Members, who were nearly all
wives of Members, were often full-time homemakers. Most raised
their children while their Member spouses attended the long
daily sessions of committees and their Chamber on Capitol Hill.
Many congressional wives had very active lives outside the home
and were involved with volunteer activities, organizations such
as the Congressional Club for congressional wives, and other
interests.\87\ With changing social characteristics and
employment opportunities in the 1970s and 1980s, wives of long-
serving or older Members began their own careers in the
Washington area. Younger wives expected to have a job or a
career as well as a family role.
---------------------------------------------------------------------------
\87\ Additional clubs exist for spouses, both nonpartisan and
partisan. For background, see Nikki Schwab, ``Sign of the Times:
Husbands Happily Join Senate Spouses,'' U.S. News & World Report,
September 22, 2014; and Emily Heil, ``Cathy Boozman Seeks to Unite GOP
Spouses,'' Roll Call, January 17, 2011, at http://www.rollcall.com/
news/-202524-1.html.
---------------------------------------------------------------------------
Today, the option of living in Washington, DC, is not
attractive to many congressional families. The area is
extraordinarily expensive compared with most of the places from
which Members are elected. Many spouses have their own careers
in their home cities and towns, and a number are partners or
owners of businesses. For many families today, finding
childcare is a daunting task. Once a family has a good
arrangement, it is loath to leave it. Families are also part of
a local society--the spouses' families, friends, and colleagues
from different areas of their lives. Spouses are active in
local groups, such as churches, schools, charitable
organizations, and so on. To move to Washington is to give up a
large network that supports a family both financially and
socially.
A Concluding Observation
The impending retirement of Representative John Dingell,
dean of the House, is a clear signal that Congress has fully
entered another new era in its 225-year evolution. The arc of
Mr. Dingell's life to his retirement is an apt metaphor for
making some concluding observations to this report, which has
described some notable changes that have occurred in Congress
over the past 50 years and their impact on congressional
service.
Mr. Dingell grew up in Washington, DC, the son of a U.S.
Representative. The senior Representative Dingell had won his
seat in the House in the same election as Franklin Roosevelt
won his first term as President. As an adolescent, John Dingell
became a House page. He was present on the House floor on
December 8, 1941, when President Roosevelt delivered his Infamy
Speech seeking a congressional declaration of war against
Japan. At the age of 18 in 1944, Mr. Dingell enlisted in the
U.S. Army. His own House service began in 1955, when he won a
special election as a Democrat after his father's death.
When Mr. Dingell entered the House, Representative Sam
Rayburn, the Texas Democrat who had taken office in 1913, was
Speaker. Representative Joseph Martin of Massachusetts, first
elected in 1924 and a former Republican Speaker, was minority
leader. Of the 19 standing House committees, 14 were chaired by
Southern and Border State Democrats. Five were chaired by
Northern Democrats, one of which was the Committee on Un-
American Activities (HUAC). Senator Lyndon Johnson of Texas was
Senate majority leader, and Senator William Knowland of
California was Senate minority leader. Dwight Eisenhower was in
the 3d year of his first term as President.
Longevity of service in the House and Senate was common in
this earlier era.
In the 1970s and 1980s, Mr. Dingell epitomized a Congress
that asserted itself as a coequal branch of the national
government. He served first as chair of the Energy and Power
Subcommittee of the Interstate and Foreign Commerce Committee.
He became chair of the renamed Energy and Commerce Committee in
1981 and served concurrently as chair of its Oversight and
Investigations Subcommittee. He aggressively and famously
conducted oversight of the executive branch on matters ranging
from hazardous waste cleanup to pesticide residues in food to
inferior prescription drugs to Pentagon spending to deceitful
university billing for research grants.\88\
---------------------------------------------------------------------------
\88\ From 1981 through 1986, Democrats controlled the House,
Republicans controlled the Senate, and Republican Ronald Reagan was
President.
---------------------------------------------------------------------------
Mr. Dingell was recognized for his ability to assert his
committee's jurisdiction and to steer legislation through the
House and through conferences with the Senate as well as for
his knowledge of legislative procedure. In testimony before the
House Rules Committee, he once observed, ``If you let me write
procedure and I let you write substance, I'll screw you every
time.'' \89\ He was a committee baron in an era when committee
chairs were the central figures of Congress, even as party
leaders' influence and control were growing.
---------------------------------------------------------------------------
\89\ ``Michigan--16th District: John D. Dingell,'' in Politics in
America: 1990, The 101st Congress, ed. Phil Duncan (Washington, DC:
Congressional Quarterly Inc., 1989), p. 769.
---------------------------------------------------------------------------
On February 11, 2009, Mr. Dingell became the longest
serving Representative in history, and, on June 7, 2013, he
became the longest serving Member of Congress in history.
Many aspects of Mr. Dingell's career are traits of the
congressional era that is now rapidly passing. These traits
include personal memory of World War II and the dawn of the
cold war, Members and their families living year round in
Washington, long congressional careers for Members and staff,
weekly 5-day meetings of the House and Senate, decentralized
power within Congress, and time for collegial and personal
relationships and reflection.
Members sitting in the incoming 114th Congress will not
likely match Mr. Dingell's longevity or his institutional or
personal memories. Only 26 Members would have been old enough
as children to remember World War II.\90\ Only a few Members
will have served during the first 33 years of Mr. Dingell's
career. Assuming all senior Members running for reelection win
their races for the 114th Congress, only 12 Members would have
served in Congress during the congressional reform decade of
the 1970s.\91\ Only an additional 29 Members would have begun
their service during the Ronald Reagan Presidency.\92\
---------------------------------------------------------------------------
\90\ Eleven Senators and 15 Representatives.
\91\ Three Senators, 4 Senators who were then serving in the House,
and 5 Representatives. Only Representative John Conyers' congressional
service would have begun in the 1960s.
\92\ Five Senators, 11 Senators who were then Representatives, and
13 Representatives.
---------------------------------------------------------------------------
The Congress that has evolved over the 1990s and 2000s is
markedly different from the one of this immediately past
congressional era. The shared memory of Members in the
contemporary Congress is of wars without a decisive end,\93\
the terrorist attacks of September 11, 2001, and the continuing
threat of ethnic and religious fanaticism. The shared
experience is of Members spending as little as 3 days a week at
work in Washington, DC, of power converging in party
leadership, and of long days working in congressional districts
and home States. Large amounts of time spent fundraising,
higher turnover in membership and staff, round-the-clock media
relations and media engagement, and little personal time are
other experiences common to contemporary Members.\94\
---------------------------------------------------------------------------
\93\ Wars beginning with the Korean war. See, for example, David
Ignatius, ``Hemmed in by a limited war,'' The Washington Post, October
10, 2014, p. A-21.
\94\ For an examination of the sociodemographic characteristics of
the 113th Congress, see the companion CRS centennial report in this
volume, The 113th Congress and the U.S. Population: Discussion and
Analysis of Selected Characteristics, by Jennifer D. Williams, Ida A.
Brudnick, and Jennifer E. Manning.
---------------------------------------------------------------------------
In addition, changes in the House and Senate as legislative
bodies have affected the experience of being a Member of
Congress. Earlier, committee markups of important legislation
might consume meetings of several or many days over the course
of weeks. Today, for even the most important bills, markups are
generally completed in a day or less. The House in the earlier
era used open and modified open special rules to consider
measures on the floor. The Senate innovated a two-track system
to allow it to process one or more pieces of legislation in a
relatively routine manner at the same time as it allowed
extensive debate and amendment of controversial legislation or
controversial amendments to a measure (see ``On the House and
Senate Floors, a Drive for Efficiency,'' above). In the last
two decades, the House has turned more often to the use of the
suspension of the rules procedure and of structured and closed
rules to process measures on the House floor, whereas the
Senate has seen an increase in the requirement for 60 votes on
motions, including motions to amend, and in majority leaders
filing cloture petitions and using their priority of
recognition to ``fill the amendment tree.'' \95\ In sum, it has
become more difficult for Members to engage in the legislative
process with more than their votes.
---------------------------------------------------------------------------
\95\ See Congressional Quarterly's American Congressional
Dictionary, p. 8.
``Amendment Tree--A diagram showing the number and types of
amendments that the rules and practices of a house permit to be offered
to a measure before any of the amendments is voted on. It shows the
relationship of one amendment to the others, and it may also indicate
the degree of each amendment, whether it is a perfecting or substitute
amendment, the order in which amendments may be offered, and the order
in which they are put to a vote. The same type of diagram can be used
to display an actual amendment situation.''
When a majority leader fills the amendment tree, he uses his
priority of recognition to be recognized after he offers one amendment
to offer another, until the branches of the relevant amendment tree are
filled with amendments, thereby blocking any other Senator from
offering an amendment. The majority leader must also follow additional
procedures to successfully implement this procedural strategy, as
explained in CRS Report RS22854, Filling the Amendment Tree in the
Senate, by Christopher M. Davis.
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The past era was one in which legislating was more visible
to the public--recall C-SPAN coverage of Congress--than the
election politics present in the legislative process. The
current era is one in which election politics seems more
visible in the legislative process than Congress' legislative
accomplishments.\96\ In the past era, a Member of Congress'
life was centered in Washington and in the Member's work in
committees and on the floor.\97\ In the current era, a Member
of Congress' life is centered in the Member's district or
State, maintaining contact with its residents, interest groups,
and politicians.\98\ A significant amount of time at home and
in Washington is spent fundraising. Workweeks in Washington are
relatively brief, and election politics imbues legislative
work.\99\
---------------------------------------------------------------------------
\96\ For foundational studies of the relationship between election
politics and political behavior, see Richard F. Fenno, Home Style:
House Members in Their Districts (New York: HarperCollins, 1978); David
R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale
University Press, 1974); and David W. Rohde, Parties and Leaders in the
Post-Reform House (Chicago: University of Chicago Press, 1991).
\97\ In his book, The Job of the Congressman, Representative Udall
included a study on the ``congressional office work load,'' based on a
survey conducted under the ``auspices of the American Political Science
Association.'' Part of the study estimated the time an ``average
Congressman'' spent performing various roles in the course of a week.
Of the 59.3 hour average workweek, a Representative could expect to
spend 15.3 hours (25.8 percent of the Member's time) on the House floor
and 7.1 hours (12.0 percent) in committee. Donald G. Tacheron and
Morris K. Udall, The Job of the Congressman, p. 303.
\98\ A Member may have many reasons for keeping contact with State
legislators and other politicians, including the political support they
might provide. With State legislators' terms limited in some States, in
addition, there may be more potential candidates for Congress.
\99\ See, for example, the analysis of ``cultural changes'' within
Congress in Donald R. Wolfensberger, Getting Back to Legislating:
Reflections of a Congressional Working Group, pp. 1-2.
---------------------------------------------------------------------------
The past era and the current era presumably manifest the
political climate of the country at their respective times. In
delivering the Pi Sigma Alpha lecture to an annual meeting of
the American Political Science Association in 2000, former
Representative Lee Hamilton explained the situation this way:
Many Americans think that reasonable people agree on the
solutions to major national problems, and they see no good
reason for Congress not to implement such a consensus. Yet, the
truth is there is far less consensus in the country than is
often thought. Survey after survey shows that Americans don't
even agree on what are the most important issues facing the
country, let alone the best way to solve them. People
misunderstand Congress' role if they demand that Congress be a
model of efficiency and quick action. Congress can work quickly
if a broad consensus exists in the country. But such a
consensus is rare--especially on the tough issues at the
forefront of public life today. Usually, Congress must build a
consensus. It cannot simply impose one on the American people.
The quest for consensus can be painfully slow, and even
exasperating, but it is the only way to resolve disputes
peacefully and produce policies that reflect the varied
perspectives of our diverse citizenry.\100\
---------------------------------------------------------------------------
\100\ Lee Hamilton, ``What I Wish Political Scientists Would Teach
about Congress,'' p. 760. See also Nora Caplan-Bricker, ``Party of
One,'' National Journal, October 4, 2014, pp. 28-35.
In the 1960s and 1970s, voters in election after election
sent Democratic majorities to Congress that would pass large
numbers of health, education, environmental, employment, civil
rights, and other bills and fund an expanding Federal portfolio
of responsibilities. The emphasis changed with the election of
a Republican Senate and a Republican President in the 1980s--to
enacting tax cuts and tax reform, implementing Social Security
reform, increasing military spending, controlling domestic
spending, and so on--but Congress acted on many bills. Under
both President George H.W. Bush and President Bill Clinton,
Congress was controlled by the other party, but Congress and
the President enacted both major and routine legislation.
Compromise was an essential element in putting together voting
majorities in committees and in the House and Senate and in
reaching agreement between Congress and the President.\101\
Congress reflected the political climate of the times.\102\
---------------------------------------------------------------------------
\101\ From 1969 through 1976, Democrats controlled Congress and
Republicans occupied the White House. From 1977 through 1980, Democrats
controlled both of the elected branches. From 1981 through 1986,
Republicans controlled the Senate and the White House, and Democrats
controlled the House. Democrats took back the Senate in the 1986
election, but President George H.W. Bush won the 1988 election to
continue Republican control of the White House. Under each of these
arrangements, significant legislation was enacted but accommodation
between the parties and within the parties was essential to agreement.
See the Congressional Quarterly Inc. series Congress and the Nation,
vols. III-X (Washington, DC: CQ Press, 1973, 1977, 1981, 1985, 1989,
1993, 1997, and 2001).
\102\ Various studies show the ideological and party overlap and
distance between the parties. Congressional parties in the 1960s,
1970s, and beyond were ``big tent'' parties comprising liberals,
moderates, and conservatives. See, for example, The Brookings
Institution, ``Historical House Ideology and Party Unity, 35th-112th
Congress (1857-2012), an online interactive graphic, at http://
www.brookings.edu/research/interactives/2013/historical-house-ideology-
and-party-unity; and the annual Congressional Quarterly vote studies,
which appear in CQ's annual almanacs (Congressional Quarterly Almanac,
Washington, DC: Congressional Quarterly Inc.).
---------------------------------------------------------------------------
In the contemporary era, voters are polarized and unable to
consistently send majorities to Congress with any mandate to
move government in a specific direction. According to the study
of the Pew Research Center for the People & the Press entitled
Political Polarization in the American Public, released in June
2014:
Democrats and Republicans are more ideologically divided
than they were even 20 years ago, which means that the
``ideological overlap between the two parties has diminished:
Today, 92% of Republicans are to the right of the median
Democrat, and 94% of Democrats are to the left of the median
Republican.''
27 percent of Democrats ``see the Republican Party as a
threat to the nation's well-being,'' and 36 percent of
Republicans ``see the Democratic Party as a threat to the
nation's well-being.''
The 12 percent of the public that is most consistently
liberal and the 9 percent of the public that is most
consistently conservative, as noted earlier, on ``measure after
measure--whether primary voting, writing letters to officials,
volunteering for or donating to a campaign . . . are more
actively involved in politics, amplifying the voices that are
least willing to see the parties meet each other halfway.''
46 percent of Democrats and Democratic-leaners (Americans
who ``have attitudes and behaviors that are very similar to
those of partisans'') and 50 percent of Republicans and
Republican-leaners prefer an outcome on policy issues between
President Obama and congressional Republicans ``to split the
difference at exactly 50/50.'' Yet, ``consistent liberals say
Obama should get two-thirds of what he wants,'' and
``consistent conservatives say . . . congressional Republicans
should get 66% of what they want.'' \103\
---------------------------------------------------------------------------
\103\ Pew Research Center for the People & the Press, Political
Polarization in the American Public.
---------------------------------------------------------------------------
The Congress of the contemporary era reflects voters' lack
of consensus. President George W. Bush and, during his first 2
years in office, President Barack Obama, with Congresses under
the control of their own party, passed both major and routine
legislation. Party unity, however, increased during the first
decade of the 21st century. Some of the major legislation
passed during President Obama's first 2 years in office did so
with exclusive or near-exclusive Democratic Members' votes. It
became more difficult in the 112th Congress and the 113th
Congress, with split party control of Congress and high party
unity, to pass companion bills in the two Chambers. The
visibility of electoral politics in the legislative process
appears to respond to today's political climate.\104\
---------------------------------------------------------------------------
\104\ For a perspective on how eras with consensus and lacking
consensus are manifestations of the Founding Fathers' constitutional
design, see William F. Connolly, Jr., ``Does James Madison Still Rule
America?,'' Extensions, A Journal of the Carl Albert Congressional
Research and Studies Center, summer 2014, pp. 10-15.
---------------------------------------------------------------------------
Congress seems to have fully entered another new era of its
225-year evolution, which began on April 1 and April 6, 1789,
when a quorum of the House and a quorum of the Senate,
respectively, were achieved and the First Congress convened.
Speculation as to how long the current era will last or what
the transition to and contours of the next congressional era
will be is beyond the scope of this report.
=======================================================================
II. THE MEMBERS OF CONGRESS
=======================================================================
Tweet Your Congressman: The Rise of Electronic Communications in
Congress
Matthew E. Glassman
Analyst on the Congress
----------
Constituent communications serve a vital role in
legislative government. Although virtually all Members
continue to use traditional modes of constituent
communication, such as postal mail and face-to-face
meetings, the use of new electronic communications
technology is dramatically increasing. The rise of
electronic communications has altered the traditional
patterns of communication between Members and
constituents. These changes have a variety of
implications for the practice of legislative politics
on Capitol Hill, ranging from the organization of
Member office operations to the Members' perception of
their constituency and understanding of their
representational role.
Introduction
Constituent communications serve a vital role in
representative government. If information about legislative
activity cannot easily flow from Members to constituents,
citizens will be less capable of drawing policy judgments
regarding congressional actions, or electoral judgments of
their Members. Likewise, if constituents cannot easily
communicate their preferences to Members, congressional action
is less likely to reflect popular opinion. It is not an
exaggeration to say that Member-constituent communication is
one of the basic building blocks of a representative democracy.
Throughout American history, concerns about these vital
democratic connections underpinned the existence of the
franking privilege, which for much of the 19th century allowed
not only Members to send mail without personal cost, but also
constituents to send mail to Congress free of charge.
Technological changes during the 19th and early 20th
centuries--most notably the rise of mass newspapers, the
invention of the telephone, and advances in transportation that
allowed Members to travel more easily--aided Members and
constituents in exchanging information with each other. Until
the late 20th century, most Member-constituent communications
comprised these four forms of communication--postal mail,
telephone calls, press releases, and face-to-face meetings.
Although virtually all Members continue to use these
traditional modes of constituent communication, the use of new
electronic communications technology is dramatically
increasing. For example, prior to 1995, there were virtually no
email exchanges between Members and constituents. In 2011, over
243 million emails were received by the House of
Representatives, more than 20 times the amount of postal mail
received. Conversely, the amount of postal mail sent to
Congress dropped by more than 50 percent during the same time
period. Member official Web sites, blogs, YouTube channels, and
Facebook pages--all nonexistent 20 years ago--also receive
significant traffic. In less than 20 years, the entire nature
of Member-constituent communication has been transformed,
perhaps more than in any other period in American history.
The rise of such electronic communication has altered the
traditional patterns of communication between Members and
constituents. Electronic technology has reduced the marginal
cost of constituent communications; unlike postal letters,
Members can reach large numbers of constituents for a fixed
cost, and constituents can reach Members at virtually zero
cost. Likewise, the relay of information from Capitol Hill to
the rest of the country (and vice versa) has been reduced,
timewise, to basically zero. As soon as something happens in
Congress, it is known everywhere in real time. Finally, Members
can reach large numbers of citizens who are not their own
constituents.
These changes have wide-ranging implications for the
practice of legislative politics on Capitol Hill. They are
altering how Members organize their personal offices. They are
impacting how Members manage their legislative activities on
and off the floor. And, perhaps most importantly, they are
transforming the very nature of representation in the United
States, as Members become less bound to their geographic
constituencies and can more easily engage wider, nongeographic
political and policy constituencies.
This report is divided into four parts. First, it discusses
the role of constituent communications in a representative
democracy and briefly reviews the historical development of
constituent communications in the United States. Second, it
reviews the rise of electronic communications in Congress since
1995. It then discusses how electronic communications differ
from traditional constituent communications. Finally, it
examines some of the institutional and representational
implications of these changes.
Constituent Communications
Constituent communications serve a vital role in
representative government. In early America, concerns about
these vital democratic connections underpinned the existence of
the franking privilege. The franking privilege has its roots in
the 17th century. The British House of Commons instituted it in
1660, and free mail was available to many officials under the
colonial postal system.\1\ In 1775, the First Continental
Congress passed legislation giving Members mailing privileges
so they could communicate with their constituents as well as
giving free mailing privileges to soldiers.\2\ In 1782, under
the Articles of Confederation, Congress granted Members of the
Continental Congress, heads of various departments, and
military officers the right to send and receive letters,
packets, and dispatches under the frank.\3\
---------------------------------------------------------------------------
\1\ Post Office Act, 12 Charles II (1660); and Carl H. Scheele, A
Short History of the Mail Service (Washington, DC: Smithsonian
Institution Press, 1970), pp. 47-55.
\2\ Journals of the Continental Congress, 1774-1789, 34 vols., ed.
Worthington C. Ford et al. (New York: Johnson Reprint Corp., 1968),
vol. 3, p. 342 (November 8, 1775).
\3\ Journals of the Continental Congress, 1774-1789, vol. 23, pp.
670-679 (October 18, 1782).
---------------------------------------------------------------------------
After the adoption of the Constitution, the First Congress
passed legislation for the establishment of Federal post
offices, which contained language continuing the franking
privilege as enacted under the Articles of Confederation.\4\
Under the Post Office Act of 1792, Members could send and
receive under their frank all letters and packets up to 2
ounces in weight while Congress was in session.\5\ Subsequent
legislation extended Member use of the frank to a specific
number of days before and after a session, first by 10 days in
1810, then by 30 days in 1816, and finally to 60 days in
1825.\6\ The act of 1825 also provided for the unlimited
franking of newspapers and documents printed by Congress,
regardless of weight.
---------------------------------------------------------------------------
\4\ Act of Congress, September 22, 1789, 1 Stat. 70. See also Act
of Congress, August 4, 1790, 1 Stat. 178; and Act of Congress, March 3,
1791, 1 Stat. 218.
\5\ Act of Congress, February 20, 1792, 1 Stat. 232, 237.
\6\ Act of Congress, May 1, 1810, 2 Stat. 592, 600; Act of
Congress, April 9, 1816, 3 Stat. 264, 265; and Act of Congress, March
3, 1825, 4 Stat. 102, 110.
---------------------------------------------------------------------------
Scholarly work suggests that franked mail played an
important role in national politics during the late 18th and
early 19th centuries.\7\ In 1782, James Madison described the
postal system as the ``principal channel'' that provided
citizens with information about public affairs.\8\ Members
mailed copies of acts, bills, government reports, and speeches,
serving as a distributor for government information and a proxy
for the then-nonexistent Washington press corps, providing
local newspapers across the country with information on
Washington politics.\9\ Because franking statutes allowed
Members to both send and receive franked mail during much of
the 19th century, constituents could also mail letters to their
Senators and Representatives for free.\10\
---------------------------------------------------------------------------
\7\ See Richard R. John, Spreading the News: The American Postal
Service From Franklin to Morse (Cambridge, MA: Harvard University
Press, 1995); Edward G. Daniel, ``United States Postal Service and
Postal Policy, 1789-1861'' (Ph.D. diss., Harvard University, 1941); and
Ross Allan McReynolds, ``History of the United States Post Office,
1607-1931,'' (Ph.D. diss., University of Chicago, 1935).
\8\ James Madison, ``Notes on Debates,'' December 6, 1782, in
William T. Hutchinson et al., eds., Papers of James Madison (Chicago:
University of Chicago Press, 1962), vol. 5, p. 372.
\9\ John, Spreading the News: The American Postal Service From
Franklin to Morse, p. 57.
\10\ In addition, the Post Office Department did not require
prepayment for mail until January 1, 1856. See Act of Congress, March
3, 1855, 10 Stat. 642.
---------------------------------------------------------------------------
Historically, the franking privilege was seen as a right of
the constituents, not of the Members.\11\ When the franking
statutes were first revised in 1792, a proponent argued that
``the privilege of franking was granted to the Members . . . as
a benefit to their constituents.'' \12\ More generally,
President Andrew Jackson suggested that the Post Office
Department itself was an important element of a democratic
republic:
---------------------------------------------------------------------------
\11\ Daniel, ``United States Postal Service and Postal Policy,'' p.
446.
\12\ House debate, Annals of Congress, vol. 3, December 16, 1792,
pp. 252-253.
This Department is chiefly important as a means of
diffusing knowledge. It is to the body politic what the veins
and arteries are to the natural--carrying, conveying, rapidly
and regularly to the remotest parts of the system correct
information of the operations of the Government, and bringing
back to it the wishes and the feelings of the people.\13\
---------------------------------------------------------------------------
\13\ U.S. Congress, Senate, Message from the President of the
United States, to the Two Houses of Congress, at the Commencement of
the First Session of the Twenty-first Congress, 21st Cong., 1st sess.,
S. Doc. 1 (Washington, DC: Duff Green, 1830), p. 18.
Even in the modern era, in addition to direct
communications with constituents about matters of public
concern, proponents of franking argue that free use of the
mails allows Members to inform their constituents about
upcoming townhall meetings, important developments in Congress,
and other civic concerns. Without a method of directly reaching
his or her constituents, proponents maintain that a Member
would be forced to rely on intermediaries in the media or
significant personal costs in order to publicize information
the Member wished the constituents to receive.\14\
---------------------------------------------------------------------------
\14\ Alfred A. Porro and Stuart A. Ascher, ``The Case for the
Congressional Franking Privilege,'' University of Toledo Law Review,
vol. 5 (winter 1974), pp. 280-281.
---------------------------------------------------------------------------
Technological changes during the late 19th and early 20th
centuries--most notably the rise of mass newspapers, the
invention of the telephone, and advances in transportation that
allowed Members to travel more easily--aided Members and
constituents in exchanging information with each other. Until
the late 20th century, the vast majority of Member-constituent
communications comprised these four forms of communication--
postal mail, telephone calls, press releases, and face-to-face
meetings.
Contemporary law and Chamber regulations continue to
reflect the belief that these traditional forms of Member-
constituent communication are vital to the functioning of our
representative system. By law, Representatives and Senators are
provided an annual allowance that may be used to frank letters,
make long distance phone calls, travel to and from their
districts for the purpose of interacting with constituents, buy
office equipment that supports their constituent contact, and
pay for other office expenses.
The Rise of Electronic Communications
Although all Members continue to use traditional modes of
constituent communication, they have many more choices and
options available to communicate with constituents than they
did 20 years ago. In addition to traditional modes of
communication such as townhall meetings, telephone calls, and
postal mail, Members can now reach their constituents via
email, Web sites, tele-townhalls, online videos, social
networking sites, and other electronic-based communication
applications. Likewise, constituents can take advantage of
these new mediums as well.
There is overwhelming evidence that both Members and
constituents are taking advantage of these new mediums; the use
of new electronic communications technology is dramatically
increasing.\15\ On the constituent side, email has now become,
far and away, the preferred form of communication with
Congress. Prior to 1995, there were virtually no email
exchanges between Members and constituents.\16\ By 2011, over
243 million emails were received by the House of
Representatives, more than 20 times the amount of postal mail
received.\17\ Similar growth was seen in incoming Senate
electronic mail, with over 90 million emails received in
2011.\18\ Figure 1 shows the rapid growth of email from
constituents to Congress.
---------------------------------------------------------------------------
\15\ For journalistic accounts of the rise of electronic
communications in Congress, see Elizabeth Brotherton, ``A Different
Kind of Revolution; Technology Redefines Constituent Outreach,'' Roll
Call, September 10, 2007, p. 1; Amy Doolittle, ``31 Days, 32 Million
Messages,'' Politico, February 27, 2007, p. 1; Jonathan Kaplan, ``2008
Candidates search Web for next new thing,'' The Hill, November 29,
2006, p. 6; David Haase, ``Twitter: One More Medium, Much Shorter
Messages,'' Roll Call, July 23, 2009, p. 4; and Daniel de Vise,
``Tweeting Their Own Horns,'' The Washington Post, September 20, 2009,
p. A13.
\16\ Chris Casey, The Hill on the Net: Congress Enters the
Information Age (Chestnut Hill, MA: Academic Press, Inc., 1996), pp.
29-35.
\17\ Data provided by the Office of the Chief Administrative
Officer, House of Representatives, for all external emails sent to
House users. These data do not include internal emails sent from one
House user to another. Data for 2012 and 2013 are not yet available.
\18\ Data provided by the Office of the Sergeant-At-Arms, Senate,
for all external emails sent to Senate users. These data do not include
internal emails sent from one Senate user to another. Data for 2012 and
2013 are not yet available.
---------------------------------------------------------------------------
Figure 1. Email and Postal Mail to Congress, 1995-2011
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Data provided by the House CAO and Office of the Senate
Sergeant-At-Arms.
Note: These data do not include internal emails sent from one
congressional user to another.
In comparison, the amount of postal mail sent to Congress
has dropped by more than 50 percent during the same time
period, from almost 53 million pieces of mail in 1995 to less
than 22 million pieces in 2011.\19\ But it has been replaced by
over 300 million emails. In fact, postal mail is now just 7
percent of all mail coming to Capitol Hill, and that 7 percent
is equal to more than half of the mail received in Congress in
1994.
---------------------------------------------------------------------------
\19\ Data provided by the Office of the Chief Administrative
Officer of the House of Representatives and the Office of the Secretary
of the Senate. See also Kathy Goldschmidt and Leslie Ochreiter,
Communicating with Congress: How the Internet Has Changed Citizen
Identification, Congressional Management Foundation (Washington, DC),
at http://nposoapbox.s3.amazonaws. com/cmfweb/
CWC_CitizenEngagement.pdf.
---------------------------------------------------------------------------
Communications from Congress have seen a similar
transformation. Figure 2 reports the volume of quarterly mass
postal mailings in the House from 1997 to 2008, and then the
quarterly volume of all mass communications (which include
postal mailing) from 2009 to 2013. Mass communications are
defined by the House as ``unsolicited communication of
substantially identical content to 500 or more persons in a
session of Congress,'' which includes things like mass
unsolicited emails, Web or print advertisements, radio spots,
and newspaper inserts.
Figure 2. House Mass Mail (FY97-FY09) and Mass Communications (FY09-
FY13)
Millions of Items of Mass Mail and Mass Communications
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: CRS analysis of CAO data.
As shown in the graph, mass postal mail volumes follow a
familiar pattern of peaking in the last quarter of the first
year of each Congress (from the December newsletters) and then
again in the period preceding the general election. They then
drop off in the Chamberwide prohibited period (late third
quarter and early fourth quarter of election years) and the
lame duck fourth quarter of a Congress, as well as the first
quarter of a new Congress. In the first Congress in which mass
communications were tracked--the 111th Congress, 2009-2011--a
similar pattern was observed, albeit at a naturally greater
scale (since mass communications are inclusive of mass
mailings). But then in 2011, in the first session of the 112th
Congress, mass communications exploded, to roughly 10 times the
volume of mass communications sent in the first quarter of
2009.
At the same time that Member use of email communications is
increasing, the use of franked mail is at record lows. The
total cost of franked mail coming out of Congress (adjusted for
inflation) is at its lowest point since Congress began
reimbursing the Post Office for congressional mail costs in
FY1954. In nominal dollars, franked mail costs were down to
$7.6 million in FY2013, from a high of over $113 million in
FY1988.
This decline in expenditures on postal mail is largely due
to reform efforts in the late 1980s, including public
disclosure of mail costs for individual Members and direct
charging of Members' budgets for the cost of mail they send.
However, nominal mail costs have also declined over 60 percent
in the past 10 years, from $19.3 million in FY2003 to $7.6
million in FY2013. Adjusted for inflation, this is over a two-
thirds decrease in mail expenditures.
In addition to the rise of email, the official Web sites,
blogs, YouTube channels, and Facebook pages of Members--all
nonexistent 20 years ago--also receive significant traffic.\20\
As of January 24, 2012, a total of 426 of 541 Members of
Congress (78.7 percent) had an official congressional account
registered with Twitter, and 472 Members (87.2 percent) had an
official congressional account registered on Facebook. Figure 3
shows the proportion of Members in the House and Senate who had
an official account with Twitter, Facebook, both, or neither,
as of January 24, 2012, respectively. These numbers reflect an
increase in adoption over the previous two years. As of
September 2009, only 205 Members--39 Senators and 166
Representatives (a total of 38 percent)--had been registered
with Twitter.\21\
---------------------------------------------------------------------------
\20\ A survey of the YouTube Senate Hub homepage (http://
www.YouTube.com/user/senatehub) finds a large range in the number of
views each video has received. Some videos have only a few dozen views
while others have received tens of thousands of views.
\21\ For information on Member adoption of Twitter, see CRS Report
R41066, Social Networking and Constituent Communications: Member Use of
Twitter During a Two-Month Period in the 111th Congress, by Matthew E.
Glassman, Jacob R. Straus, and Colleen J. Shogan.
---------------------------------------------------------------------------
Figure 3. Twitter and Facebook: House and Senate Adoption Proportions
As of January 24, 2012
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: LBJ School of Public Affairs and CRS data analysis.
The Nature of Electronic Communications
The rise of such electronic communication has altered the
traditional patterns of communication between Members and
constituents. Technology has reduced the marginal cost of
constituent communications; unlike postal letters, Members can
reach large numbers of constituents for a fixed cost, and
constituents can reach Members at virtually zero cost.\22\
Likewise, the relay of information from Capitol Hill to the
rest of the country (and vice versa) has been reduced,
timewise, to basically zero. As soon as something happens in
Congress, it is known everywhere in real time. Finally, Members
can reach large numbers of citizens who are not their own
constituents.
---------------------------------------------------------------------------
\22\ This substantially differentiates electronic mail from franked
mail, which does incur a marginal cost. See CRS Report RL34188,
Congressional Official Mail Costs, by Matthew E. Glassman.
---------------------------------------------------------------------------
Electronic Communications Are Inexpensive
The representational communication activities of both
Members and constituents are constrained by cost.
Representatives and Senators are given a fixed amount of
money--known as the Members' Representational Allowance (MRA)
in the House and the Senators' Official Personnel and Office
Expense Account (SOPOEA) in the Senate--for the hiring of
staff, travel expenses to and from their district or State,
constituent communications, and other office expenses.\23\
Prior to the rise of electronic communications, this budget was
a significant constraint; postal mail and long distance phone
calls have a stable marginal cost. Likewise, constituents were
constrained by their own personal financial budget; the
marginal value of a phone call or letter to Congress had to be
weighed against the marginal value of any other use of the same
money. In effect, both Members and constituents were
constrained to communicate with each other only when the cost
of communication was outweighed by the importance of the
communication.
---------------------------------------------------------------------------
\23\ For more information on the MRA and SOPOEA, see CRS Report
RL30064, Congressional Salaries and Allowances, by Ida A. Brudnick.
---------------------------------------------------------------------------
Electronic communications have virtually no direct marginal
cost. Once a Member or constituent pays the startup and
recurring costs of owning a computer, there is no further
financial cost for each individual email communication between
them. Almost all electronic communication media--be it email,
social media, tele-townhalls, Web advertisements, and so
forth--tend to have fixed capital or startup costs, but are
then largely free on the margin. The result is that, for both
Member and constituent, the only marginal cost to sending an
additional communication is a time cost. Direct financial costs
have been largely eliminated.
Electronic Communications Are Fast
Electronic communications are faster than traditional forms
of Member-constituent communications. This is obvious, but it
has several important implications for how congressional
offices choose to use it and how it shapes their communications
strategy. In the past, if Members wanted to send out time-
sensitive communications on congressional action, the best
outlet was probably a faxed press release to the media, perhaps
to the local newspapers serving their district or State. There
was no point in trying to send postal mail directly to
constituents at that speed. Now, however, Members can update
constituents on floor activity or other business instantly,
using subscribed email lists or social media. Likewise,
constituents can use email and social media to contact Members
in real time.
This advantage changes not only how quickly information can
be shared but also the types of information Members and
constituents might provide each other. In the past, real time
information about an upcoming amendment on the floor might not
have been possible to communicate; the vote might have taken
place before the Member could alert the constituents about it,
or before constituents could communicate preferences to the
Member. With the rise of electronic communications,
constituents and Members can easily share information about
such an amendment in real time.
Electronic Communications Interact with a Wider Audience
Perhaps the greatest difference between traditional
constituent communications and electronic communications is the
change in the constituents themselves. Traditionally, Members
could only reach citizens who were actually their electoral
constituents. Following a Federal court action (Coalition to
End the Permanent Government v. Marvin T. Runyon, et al., 979
F.2d 219 (D.C. Cir. 1992)), the rules of the House were amended
to restrict Members from sending franked mail outside of their
districts. Even if it was not cost-prohibitive, it would not be
possible for a Member to reach a wider-than-district audience
using postal mail.
Electronic communications, however, are not so limited.
Members can build email subscriber lists--many offer such
subscriptions immediately upon an individual entering their Web
site--and the use of social media tools like Facebook, Twitter,
and YouTube allows Members to broadcast and interact with a
potential constituency far wider than their geographic
district. This does, however, create some potential
difficulties for Members who would prefer to only communicate
with their electoral constituents; unlike a postal address, an
email account or a Facebook account is not attached to a
geographic location.
The Implications of Electronic Communications
The rise of electronic constituent communications has wide-
ranging implications for the practice of legislative politics.
It is altering how Members organize and manage their personal
offices. It is impacting the ability of Members to gather
support for political and policy goals. And, perhaps most
important, it is transforming the very nature of representation
in the United States. Each of these sets of changes will be
discussed below.
Changing Member Office Operations
There are at least three important effects of the rise of
electronic communications on Member office operations. First,
as described above, the number of incoming emails to Congress
in 2011 was more than 10 times as great as the number of pieces
of postal mail in 1995. This, however, is almost certainly due
to the elimination of a marginal cost for constituents to
communicate their preferences to Members. There is virtually no
marginal financial cost to sending an email, and email also has
less time costs than sending traditional postal mail,
particularly when the messages are produced and distributed by
groups, and only forwarded on to Congress by individual
citizens.
In effect, the intensity threshold at which a constituent
will express a preference to a Member has been greatly reduced.
Before electronic communications, Members could expect that any
constituent willing to spend the time and money to write them
had a pretty strong preference or opinion about the subject
matter. Members can no longer count on the same level of
intensity. In effect, congressional offices receive more
constituent opinion, but have less ability to determine the
intensity of the opinion.
Second, this explosion of incoming email puts more pressure
on congressional staff. Constituent or interest group service
and communications is an important aspect of what goes on in
Members' personal offices, but it is far from the only thing
that goes on. To the degree that more staff time needs to be
allocated to the collection, processing, and responding tasks
associated with incoming communications, less time can be
allocated to policy or other work, or staffers need to put in
more hours. And while the number of staffers working in
personal offices has increased modestly in the last generation
(about a 6 percent increase in Members' offices since 1982),
the prospects, in the near term, for a significant increase--
namely the proposition of a substantial increase in
Representatives' MRAs or Senators' SOPOEA--seem quite dim.
Third, the speed of electronic communication has changed
expectations. The ability to reach constituents in real time
has created, for some constituents, an expectation that Members
will use electronic communications to rapidly respond to both
inquiries and congressional action. Whereas in the past Members
may have had days to consider how they would present issues or
voting decisions to constituents, in many cases they are now
expected to provide the same in a matter of hours. Similarly,
the rise of social media--particularly Facebook and Twitter--
has put pressure on Members to craft very short responses to
issues that often are complicated. The pressure to craft
succinct, social-media-ready communications means that Members
are often left unable to explain nuances or complexities of
issues to the degree that they might like.
Changing the Nature of Representation
The rise of electronic communications has radically
increased the opportunities for surrogate representation.
Political scientist Jane Mansbridge has defined surrogate
representation as happening when Members represent constituents
outside their district.\24\ In the traditional formulation,
this often happens around specific issues with dispersed
national constituencies: for example, former Representative
Dennis Kucinich representing antiwar advocates, former
Representative Barney Frank representing gay rights advocates,
or Representative Chris Smith representing prolife advocates.
---------------------------------------------------------------------------
\24\ Jane Mansbridge, ``Rethinking Representation,'' American
Political Science Review, vol. 97 (November 2003), pp. 515-528.
---------------------------------------------------------------------------
Prior to the rise of electronic communications, few Members
were engaged in such surrogate activities. They simply did not
have the resource capacity. Representatives were (and still
are) barred from sending franked postal mail outside of their
districts. The only way to get a national audience was to get
on television--which usually meant having at least the power of
a committee chair, or doing something extraordinarily
provocative. And it would have been unusual to suggest spending
any significant portion of campaign money on outside-the-
district or outside-the-State activities.
Electronic communications have rearranged this playing
field. Even backbench Members can gather a national following
with relative ease, and at virtually no cost. The zero marginal
cost of the Internet, and in particular the social media
applications like Twitter, YouTube, and Facebook, have opened
up opportunities. Any Member can stake out an issue, make a
concerted effort to become a national leader on the issue, and
have some chance of success, all without expending almost any
marginal resources.
For individual Members, there are clear benefits for this:
national leadership on one or more issues means a higher
political profile both inside and outside the House or Senate,
more campaign fundraising opportunities, and greater
opportunity to influence public policy. While there is little
hard empirical evidence, it does seem as if Members are
beginning to alter their representational strategies around
these facts: connecting themselves to national movements,
inserting themselves more often into national policy debates,
and modifying their fundraising strategies to more
optimistically look for out-of-district and out-of-State money.
And the more that Members engage in surrogate representation,
the less time they have to engage in traditional district and
State representation. In effect, electronic communication may
be having a nationalizing effect on representation.
Certain things, of course, have not changed. The most
important is that only people in a district or State can vote
for a Member of Congress. But there are other important things,
too: district offices have to be in the district, franked mail
still can only go to the district, and so forth. So the
electoral connection, and most of the resources available to
maintain it, are still tied squarely to a district or State.
And this means that Members will always be tied, first and
foremost, to a geographic district or State. The electoral
constituency that the Member has--the geographic constituency
in his or her district or State--still rules. But it may not be
the largest constituency the Member sees anymore when he or she
looks back home from Washington. The national constituency may
now enter the Member's thinking--whether he or she wants it or
not; whether he or she knows it or not--in a way that
fundamentally rearranges the lens through which the Member sees
the home district or State.
This potentially has implications. The most important thing
that comes to mind is that the Member may now have greater
incentives than ever to try and shape his or her district or
State in a more national mold. This would be akin to
Mansbridge's idea of ``educating'' the constituency under an
anticipatory representation model.\25\ But it might just be a
Member choosing to frame issues in the district or State in a
national way, or choosing to emphasize national over local
issues when communicating to the district or State.
---------------------------------------------------------------------------
\25\ Under an ``anticipatory'' theory of voting, voters (and thus
candidates for office) concern themselves with how the candidates will
respond to future issues or votes. Contrast this with a
``retrospective'' theory, in which voters reward or punish incumbent
representatives for past behavior. Under an anticipatory theory,
representatives have the opportunity to alter the views of the
electorate by providing them information that may affect the next
election.
---------------------------------------------------------------------------
Finally, scholars of Congress and the Presidency have
argued that the rise of mass media, particularly television,
has given the President a comparative advantage over
Congress.\26\ While the President can employ the resources of
the executive branch to promote his unitary message, individual
Members of Congress lack the institutional resources to compete
with the President, and Congress as a whole lacks a unity of
message.\27\ The rise of electronic communications have
arguably allowed Congress, as a sum of its Members, to have a
more influential voice in public political debates.
---------------------------------------------------------------------------
\26\ Samuel Kernell and Gary C. Jacobson, ``Congress and the
Presidency as News in the Nineteenth Century,'' The Journal of
Politics, vol. 49, no. 4, November 1987, pp. 1016-1035. See also John
Kingdon, Agendas, Alternatives, and Public Policies (Boston: Little,
Brown, 1995), pp. 45-47.
\27\ Kernell and Jacobson, ``Congress and the Presidency,'' p.
1017.
Collaborative Relationships and Lawmaking in the U.S. Senate: A
Perspective Drawn from Firsthand Accounts
Mark J. Oleszek
Analyst on Congress and the Legislative Process
----------
This report explores the nature of collaboration in the
Senate using firsthand accounts drawn from 16 personal
interviews the author conducted with current and former
Senators and members of their senior staff. These 16
individuals provided useful perspective into the
considerations Senators make when deciding whether or
not to partner with a colleague, the incentives and
pressures they experience when doing so, and how
opportunities for collaborative relationships to
develop have shifted over time in response to broader
changes taking place in American politics. Most
respondents consider the collaborations that Senators
undertake with one another as central to Senate
lawmaking, but the consensus view among them is that
working collaboratively, especially across the aisle,
is harder than ever in today's Senate. This comes
despite the fact that, as one chief of staff put it:
``In the Senate, there is no magical crank to make
things happen. It's all about relationships.''
Introduction
Political observers and even some Senators have
characterized the contemporary U.S. Senate as broken,
dysfunctional, angry, and ungovernable. ``I think the problem
is that we've lost the capacity to actually legislate,''
lamented Senator Olympia Snowe shortly before announcing her
retirement from the Chamber.\1\ In the view of her former
colleague Evan Bayh, who also opted to retire rather than seek
reelection to the 112th Congress (2011-2012):
---------------------------------------------------------------------------
\1\ Jennifer Senior, ``Mr. Woebegone Goes to Washington,'' New York
Times Magazine, April 4, 2010.
There are many causes for the dysfunction: strident
partisanship, unyielding ideology, a corrosive system of
campaign financing, gerrymandering of House districts, endless
filibusters, holds on executive appointments in the Senate,
dwindling social interaction between Senators of opposing
parties and a caucus system that promotes party unity at the
expense of bipartisan consensus.\2\
---------------------------------------------------------------------------
\2\ Evan Bayh, ``Why I'm Leaving the Senate,'' New York Times,
February 21, 2010, E-9.
``It has gotten so bad now,'' observed Senate scholar Ross
Baker, ``that Republicans don't want to be seen publicly in the
presence of Democrats or have a Democrat profess friendship for
them or vice versa.'' \3\ ``If Senators can't get along, how
can they govern?,'' Politico's David Rogers asked
rhetorically.\4\ Recent outbreaks of incivility, even
hostility, between Senate colleagues reflect how norms of
behavior that might have been common during an earlier era have
shifted over time.
---------------------------------------------------------------------------
\3\ David M. Herszenhorn, ``In Senate Health Vote, a New Partisan
Vitriol,'' New York Times, December 24, 2009, A-1.
\4\ David Rogers, ``The Lost Senate,'' Politico, October 9, 2009,
p. 12.
---------------------------------------------------------------------------
This report begins with a discussion of how social dynamics
inside the Senate have changed in recent decades, while
subsequent sections draw upon a set of 16 personal interviews
the author conducted with current and former Senators and their
senior-level staff aides on the topic of their own
collaborative experiences. These 16 individuals provided useful
perspective into the considerations Senators make when deciding
whether or not to partner with a colleague, the incentives and
pressures they experience when doing so, and how opportunities
for collaborative relationships to develop have shifted over
time in response to broader changes taking place in American
politics.
The Inner Club
During the 1950s, scholars described the Senate as a
communal legislative environment that favored accommodation and
compromise over conflict and division. Stylized views of the
midcentury Senate depicted an inward-looking institution where
Senators acted in accordance with an informal code of
behavioral norms set forth by an ``Inner Club'' of mostly
Southern Democrats who effectively ran the Chamber.\5\ Senators
who served at that time were said to exercise greater restraint
in the use of their individual prerogatives in deference to
their colleagues and in recognition of the Senate's need to
process its workload. Senators were also expected to
accommodate one another whenever possible, with an
understanding that they would be repaid in kind at a later
time. Junior Senators were to be ``seen and not heard'' until
they accumulated enough policy expertise through committee work
to make thoughtful contributions to policy debates. This
apprenticeship period also provided them with a greater ability
to specialize in the policy areas of greatest importance to the
States they represented. Personal attacks were frowned upon,
and Senators avoided involvement in political campaigns against
their colleagues. They were ``institutional patriots'' first,
who considered such actions beneath the dignity of the Senate
and detrimental to the lawmaking process. This was an era,
according to one political scientist, in which Senators
displayed a ``spirit of accommodation.'' \6\
---------------------------------------------------------------------------
\5\ On midcentury Senate norms of behavior, see Donald R. Matthews,
U.S. Senators and Their World (New York: Random House, 1960); and
William S. White, Citadel: The Story of the U.S. Senate (New York:
Harper and Brothers, 1956). For a critical assessment of these
perspectives, see Eric Schickler, ``The U.S. Senate in the Mid-20th
Century,'' presented at the Robert C. Dole Conference on the Senate,
University of Kansas, March 25-26, 2010.
\6\ Ralph K. Huitt, ``The Outsider in the Senate: An Alternative
Role,'' American Political Science Review, vol. 55, no. 3 (September
1961), pp. 566-575. See footnote 5 for citations to works by Matthews
and White.
---------------------------------------------------------------------------
Although the ``go along, get along'' style of the
midcentury Senate has always been somewhat overstated,
behavioral norms such as those described above can serve as an
important counterweight to institutional rules and precedents
that, if invoked, make it difficult for Senators to approve
measures absent supermajority support to end a filibuster. As
Robert Axelrod has observed, informal norms of cooperation can
arise as a solution to behavior that is individually rational
(such as a heavy reliance on parliamentary prerogatives for
individual gain) but collectively irrational (such as
legislative unresponsiveness brought about by an escalating
procedural arms race).\7\ Absent these folkways or other
mechanisms of cohesion, Senate lawmaking becomes that much more
difficult to accomplish.
---------------------------------------------------------------------------
\7\ Robert Axelrod, ``An Evolutionary Approach to Norms,'' American
Political Science Review, vol. 80, no. 4 (December 1986), pp. 1095-
1111.
---------------------------------------------------------------------------
Evolution of the Senate
Where camaraderie and accommodation might have carried the
day during an earlier era, by the 1970s few remnants of the
Inner Club remained. As Nelson W. Polsby observed at that time:
We are in the midst of a profound change in the role of the
Senate in the political system, from an intensely private and
conservative body to a very public and progressive one; from
one focused on the virtues of age and experience to one devoted
to the young, the vigorous, and the ambitious.\8\
---------------------------------------------------------------------------
\8\ Nelson W. Polsby, ``Goodbye to the Inner Club,'' in Polsby,
ed., Congressional Behavior (New York: Random House, 1971), p. 105.
In contrast to the Inner Club era of the 1950s, since the
1970s Senators have become more inclined to employ the full
range of their procedural prerogatives for personal or partisan
gain. The proliferation of dilatory behavior in the modern
Senate has been well documented, and scholars now characterize
the institution as partisan and individualistic.\9\ That the
Senate at midcentury differs considerably from the contemporary
body should come as no great surprise. In the interim, the
United States has undergone a number of dramatic and
transformative events, including a shocking Presidential
assassination, a political scandal of epic proportions, the
Vietnam war, a civil rights crusade, the women's movement, an
explosion in interest group activity on Capitol Hill, an
expansion in the size and reach of the Federal Government, a
political realignment in the South from a Democratic stronghold
to a largely GOP bastion, a revolution in information and
communications technology, an expanded world market for U.S.
goods and services, a domestic and international environment
plagued by the threat of terrorism, and the near-collapse of
the U.S. financial system.
---------------------------------------------------------------------------
\9\ Scholars have devoted considerable attention to the upsurge in
dilatory behavior in the contemporary Senate. See especially Barbara
Sinclair, The Transformation of the U.S. Senate (Baltimore: Johns
Hopkins University Press, 1989); Sarah Binder and Steven S. Smith,
Politics or Principle: Filibustering in the Senate (Washington, DC:
Brookings Institution, 1997); Eric Schickler and Gregory J. Wawro,
Filibuster: Obstruction and Lawmaking in the U.S. Senate (Princeton,
NJ: Princeton University Press, 2006); Barbara Sinclair, Unorthodox
Lawmaking: New Legislative Processes in the U.S. Congress, 4th ed.
(Washington, DC: CQ Press, 2011); and Steven S. Smith, The Senate
Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate
(Norman, OK: University of Oklahoma Press, 2014).
---------------------------------------------------------------------------
Despite the changing times, as Senator Dick Durbin
explained, ``The reality of passing legislation on Capitol Hill
deals a lot with people. If you don't understand the people and
the power they have, you're not likely to succeed.'' \10\ Three
political scientists put it this way:
---------------------------------------------------------------------------
\10\ Ian Gaff and Mary Lynn Jones, ``Lessons About Congress Not
Taught in School,'' The Hill, August 7, 2002, p. 13.
The legislature is a highly interactive collectivity. Its
institutional life gravitates around two poles: one the nexus
of the representative and the represented and the other the
networks of affect and respect among legislators
themselves.\11\
---------------------------------------------------------------------------
\11\ Gregory A. Caldeira, John Clark, and Samuel C. Patterson,
``Political Respect in the Legislature,'' Legislative Studies
Quarterly, vol. 18, no. 1 (February 1993), p. 3.
The first nexus of legislative life--between lawmakers and
constituents--was covered masterfully by Richard Fenno in a
series of important works on the ``home styles'' of
Representatives and Senators, including book-length studies of
Senators Arlen Specter, Dan Quayle, John Glenn, and Pete
Dominici.\12\
---------------------------------------------------------------------------
\12\ See Richard Fenno, Learning to Legislate: The Senate Education
of Arlen Specter (Washington, DC: CQ Press, 1991); Richard Fenno, The
Making of a Senator: Dan Quayle (Washington, DC: CQ Press, 1989);
Richard Fenno, The Presidential Odyssey of John Glenn (Washington, DC:
CQ Press, 1990); and Richard Fenno, The Emergence of a Senate Leader:
Pete Domenici and the Reagan Budget (Washington, DC: CQ Press, 1991).
---------------------------------------------------------------------------
This report examines the second nexus of institutional life
in the Senate, or what might be called the ``collaborative
dimension'' of Senate lawmaking--the ways in which Senators
have interacted with one another over time, and the importance
of those interactions to the Senate's lawmaking process. In a
Chamber that favors individual expression over leadership
direction, attention must be paid to the interactions that
occur among Senators themselves.\13\
---------------------------------------------------------------------------
\13\ Reflecting this reality of senatorial life, Mike Mansfield
often referred to himself as ``first among equals'' during his tenure
as majority leader. Trent Lott compared his experience in that position
to ``herding cats,'' while Howard Baker described Senate leadership as
``pushing a wet noodle.''
---------------------------------------------------------------------------
There are good reasons to expect collaborative
relationships to play an especially important role in the
Senate as compared to the House. The Senate is smaller in size,
usually more collegial in tone, and has parliamentary rules
that encourage Senators to work together. With 6-year terms in
office, Senators have more time and a greater opportunity to
interact with colleagues in meaningful ways. Senators also
enjoy significant influence in national policymaking regardless
of their status in the majority, and even a single Senator can
slow legislative action considerably using a wide range of
dilatory motions and tactics.\14\ As Senator Lindsay Graham put
it, ``In the Senate, you cannot be dealt out of the card game .
. . The rules of the Senate allow people who are concerned and
passionate to have their say.'' \15\
---------------------------------------------------------------------------
\14\ For more on the procedural prerogatives of individual
Senators, see CRS Report RL30360, Filibusters and Cloture in the
Senate, by Richard S. Beth and Valerie Heitshusen; CRS Report RL30850,
Minority Rights and Senate Procedures, by Judy Schneider; and CRS
Report R43563, ``Holds'' in the Senate, by Mark J. Oleszek.
\15\ Emily Pierce, ``Lindsey Graham: Pushing the Envelope,'' Roll
Call, July 8, 2004, p. 18.
---------------------------------------------------------------------------
Collaborative relationships seem to serve as a basic
ingredient of Senate lawmaking, but anecdotal evidence suggests
a decline over time in the ability and willingness of Senators
to work together. ``Lost are the car pools, weekend parties and
potluck dinners that brought Senators together,'' wrote
Politico's David Rogers, a longtime observer of the
institution.\16\ A consequence of this development was
explained by former Majority Leader Tom Daschle: ``Because we
can't bond, we can't trust. Because we can't trust, we can't
cooperate. Because we can't cooperate, we become
dysfunctional.'' \17\
---------------------------------------------------------------------------
\16\ David Rogers, ``The Lost Senate,'' Politico, October 9, 2009,
p. 13.
\17\ Ibid.
---------------------------------------------------------------------------
For all its challenges, Senate lawmaking continues to
demand--barring any sudden rules changes--a high level of
collaboration among its membership for legislation of any
substance to pass the Chamber. Accordingly, the interactions
that occur and the relationships that develop between and among
Senate colleagues can play an important role in shaping
opportunities for collaboration and collective action to occur.
After all, lawmaking is an inherently social activity, so the
ability and willingness that Senators have to work together can
inform our understanding of the Senate's unique legislative
process. According to former Senator Joseph Biden:
A personal relationship is what allows you to go after
someone hammer and tongs on one issue and still find common
ground on the next. It is the grease that lubricates this
incredible system we have. It is what allows you to see the
world from another person's perspective and allows them to take
the time to see it from yours. [The Senate] has left me with
the conviction that personal relationship is the one thing that
unlocks the true potential of this place. Every good thing that
I have seen happen here, every bold step taken in 36-plus years
I have been here, came not from the application of pressure by
interest groups but through the maturation of personal
relationships.\18\
---------------------------------------------------------------------------
\18\ Congressional Record, daily edition, vol. 155 (January 15,
2009), p. S405.
---------------------------------------------------------------------------
Research Strategy
This report seeks to assess the collaborative dimension of
Senate lawmaking and how the opportunities that Senators have
to work together have changed over time. To do so, the author
has drawn upon a set of 16 personal interviews conducted in
July and August 2009 with 9 current and former Senators and 7
current and former senior staff aides. Indepth interviews with
those who possess a keen longitudinal perspective of the
institution--and an understanding of the challenges Senators
confront in the conduct of their official duties--allow for a
useful discussion of the topic of collaboration. Each interview
began with the following question designed to elicit the most
desirable attributes Senators look for in a colleague:
Question 1: What attributes do you look for when
deciding to partner with another Senator?
Identifying these attributes can help explain differences
in Senators' collaborative tendencies. Previous research in
political science has suggested that factors such as trust,
respect, and a reputation for dependability underlie patterns
of political influence in the Chamber, and Senators tend to
agree.\19\ As Senator Robert Dole told Politico's Rogers:
---------------------------------------------------------------------------
\19\ For more on how trust and respect underlie patterns of
political influence in a legislature, see Harold D. Lasswell and
Abraham Kaplan, Power and Society (New York: Free Press, 1950).
I think success depends on developing relationships,
keeping your word. If I gave my word to Ted Kennedy that
tomorrow you can offer your amendment, and somebody rushes up
to me, like Bill Frist, and says, ``I've got that amendment--I
want to offer that amendment''--if you go tell Kennedy, ``I'm
sorry, I made a mistake,'' you're finished. Not quite, but
you're on the edge. Why should he trust you the next time? I
think that's the key.\20\
---------------------------------------------------------------------------
\20\ David Rogers, ``Dole: Success Depends on Keeping Your Word,''
Politico, October 9, 2009, p. 7.
Broader developments in American politics also are likely
to shape the opportunities and incentives Senators have to work
together. With growing ideological polarization in the Senate
and less policy overlap between the two major parties, Senators
might be expected to experience greater difficulties in
building collaborative relationships with their colleagues,
especially with those from across the aisle. Questions 2 and 3
asked respondents to assess the ways in which the Senate has
evolved in recent years and what consequences, if any, recent
developments have had on prospects for meaningful collaboration
to occur between and among Senators. Those questions read as
---------------------------------------------------------------------------
follows:
Question 2: How would you characterize legislative life
in the Senate today compared to when you arrived?
Question 3: What changes, if any, have affected the
ability of Senators to work together?
It should be noted that the 16 Senators and senior staff
aides who agreed to the interview request do not constitute a
representative sample of viewpoints on this subject. Of the
nine Senators interviewed, three served in the 113th Congress
(2013-2014), including a Southern Republican, a mid-Atlantic
Democrat, and a Midwestern Democrat. Also interviewed were
three senior staff aides--two legislative directors and one
chief of staff--who are or were employed by a Northeastern
Republican, an Independent, and the Democratic leadership. To
explore collaboration from both a longitudinal and cross-
sectional perspective, former Senators and senior staff who
remained active in political life were also contacted. Trolling
the highest echelons of prominent lobbying firms and trade
associations netted seven additional participants in close
proximity to Capitol Hill. Three were former Senators,
including a former majority leader. Two were top Democratic
floor aides, one of whom served as party secretary. Another two
respondents were longtime GOP chiefs of staff.
Three former Senators no longer active in public life also
agreed to be interviewed. One traveled from Maryland for a
meeting on Capitol Hill, while another welcomed the author into
his home. Mobility issues constrained the third Senator from
meeting in person so the interview was conducted over the
telephone. These Senators were found in the telephone directory
encompassing residents of Maryland, Virginia, and Washington,
DC. In all, the sample contained nine current and former
Senators, one current chief of staff, two former chiefs of
staff, two legislative directors, and two former floor aides to
the Democratic leadership. Of these 16 respondents, 4 were
Republicans, 11 were Democrats, and 1 was an Independent.
Interviews ranged from 30 minutes to 2 hours in length, with
the average interview lasting 67 minutes. These were
semistructured and confidential interviews conducted on the
basis of the three questions listed above.
While not representative in the statistical sense, these 16
interviewees provided useful perspective into the incentives
and pressures Senators experience when collaborating with
colleagues, how prospects for collaboration might have shifted
over time, and why that might be the case. Overall, this was a
relatively veteran group with decades of Senate experience. Of
the 16 respondents, 12 served in the Senate in excess of 10
years. Participating Senators served for an average of 16 years
in the Chamber--two spent in excess of 30 years apiece in
public life--while the average staff aide had 17 years of
Senate experience. One respondent was elected to the Senate in
the 1960s, seven began their Senate careers in the 1970s, three
started in the 1980s, two in the 1990s, and three in the 2000s.
The next section considers responses to question 1 on the
attributes Senators desire in a colleague, and subsequent
sections address questions 2 and 3 on the nature of senatorial
life and how collaborative opportunities may have shifted over
time.
What Underlies a Collaborative Relationship?
Of the many personal attributes that might encourage a
working relationship to develop between Senators,
trustworthiness, respect for opposing viewpoints, and a
reputation for dependability were cited most frequently by
respondents. ``Trust and respect are vital to a sound working
relationship,'' a former Senator explained. ``Collaboration is
conditional on trust and respect,'' said another. ``You have to
know each other.'' ``Trust underpins collaboration in the
Senate,'' reiterated a third respondent. A former chief of
staff shared this view:
Trust and respect are absolutely vital to the Senate. Guys
like Ted Kennedy, Howard Baker, Thad Cochran, Mark Hatfield,
and Orrin Hatch are sought out because they're honest, they're
dependable.
One respondent illustrated the importance of trust in
Senate lawmaking by recalling an exchange between Senate
leaders Howard Baker and Robert Byrd that occurred in 1981
after Republicans gained control of the Chamber. ``You know
Senate rules better than I do,'' said Baker to Byrd, ``so I'll
make you a deal. I won't surprise you if you don't surprise
me.'' With his encyclopedic knowledge of Senate rules, Byrd
might have been predisposed to decline the deal, knowing that
he might be able to outmaneuver the relatively inexperienced
Baker during procedural negotiations between the two leaders.
``Let me think about it,'' Senator Byrd replied.
Byrd caught up with Baker 2 hours later. ``You've got a
deal,'' he said. According to this respondent, ``by honoring
the agreement, Baker and Byrd established a great deal of trust
and respect for one another.'' Subsequent interviews confirm a
sound working relationship between the two former Senate
leaders. One of Byrd's top floor aides described his boss'
relationship with Baker as ``very close.'' Of all the
collaborations that occur in the Senate at any given time--
between committee chairmen and ranking members; between
Senators who share a policy interest; between Senators of the
same party, the same State, or neighboring States; or between
Senators of different parties--the most consequential might be
the relationship that exists between the two Senate leaders.
The vital role Senate leaders play in managing the agenda,
protecting the interests of their conferences, and negotiating
with their leadership counterparts across the aisle--tasks that
often demand constant communication between them--provides each
with a strong incentive to maintain a sound working
relationship with the other.\21\
---------------------------------------------------------------------------
\21\ One respondent illustrated the importance of a sound working
relationship between party leaders by recalling a 3-week period in 2000
in which then-Minority Whip Harry Reid managed the Senate on behalf of
then-Majority Whip Mitch McConnell, his cross-party colleague in the
leadership. ``When Majority Whip McConnell had heart problems [in
2000], Reid effectively ran the floor. Would that happen today?'' the
respondent asked rhetorically.
---------------------------------------------------------------------------
Trust, respect, and dependability (or some combination
thereof) were identified by virtually all respondents as
essential components to meaningful collaboration. Attributes
such as a Senator's reputation for thoroughness and diligence
were also reported as basic to a successful partnership. ``I
seek out Senators who are thorough and hardworking and who
follow through on commitments, like Carl Levin and Ted
Kennedy,'' explained a liberal Senator. ``If Carl and I came to
different conclusions on an issue, I would reconsider my
position.''
One Midwesterner expressed a great deal of difficulty
working with moderate colleagues because ``they often feel
cross-pressured and sometimes have trouble following through on
a commitment.'' Other respondents also commented on the
inability of some moderates to follow through on previous
agreements. ``Moderates can be the hardest to work with because
they are the ones who change their tune most often,'' one said.
A liberal Senator even said he preferred working with
conservatives because, unlike moderates, ``their political
ideals won't be called into question.''
The degree to which a Senator is openminded and personally
compatible with others is also thought to foster collaboration.
Here, especially high marks go to Majority Leader Baker.
``Baker didn't dismiss anyone's opinion,'' one respondent
explained. ``He would at least listen to all his colleagues.''
``I have enormous respect [for Baker],'' one of his Democratic
colleagues stated, who also mentioned that ``his support of the
Panama Canal cost him politically but was the right thing to do
for the country.'' To another Senator, ``the compatibility
between Baker and Muskie was instrumental to passage of the
Clean Air Act [of 1970].''
If personal compatibility and openmindedness promote
collaboration, then their absence can produce the opposite
outcome. ``Some people are off the table immediately,''
reported a legislative director. ``I've seen [the Senator] say,
`I can't work with so and so' and that was it.'' Another
respondent revealed that ``[the Senator] just went on a codel
[a congressional delegation traveling overseas] with a guy who
was a total [expletive], so there's no way we're cosponsoring
anything of his for awhile.''
Other respondents cited an inability to compromise as a key
reason to avoid working with a colleague. ``You have to be
willing to jettison a little piece of your ideology to find
compromise,'' one respondent said. ``Compromise is the hallmark
of the American political system,'' explained a former Senator.
But in his view, ``a new breed of Senators made compromise more
difficult.'' Especially harsh criticism was directed at so-
called true-believers, identified by interviewees as those
whose ideological beliefs are so rigid as to prevent
compromise. According to one GOP chief of staff, ``True
believers are among the hardest to work with.'' A Democratic
respondent had this to say:
There are more true believers today that can make
collaboration and compromise difficult. If you're a true
believer, then you're less likely to compromise with those of a
different philosophy. True believers are not amenable to
compromise.
Another respondent viewed Ted Kennedy as the gold standard
when it came to his ability to compromise:
If Ted was around today, the health care debate would be
different. More than anyone else, Ted ha[d] the credibility to
strike a compromise with Republicans without losing the support
of Democratic allies.
The attributes Senators most desire in a colleague seem to
appear today as they did 30 years ago. Ross Baker interviewed
25 Senators from 1977 to 1979 in conjunction with his book-
length study of the Senate and made this observation:
When Senators were asked what qualities they prized most
highly in a colleague, certain adjectives occurred more
frequently than others. These qualities were dependability and
reliability, trustworthiness (sometimes expressed as
``integrity'' or ``honesty''), and intelligence. Also mentioned
prominently, but somewhat less frequently, were dedication,
hard work, and courage. A premium was clearly placed by these
Senators on traits that could redound to their own political
benefit, or at least not cause them to be cast into jeopardy.
The quality of being a person of one's word, of not going back
on an agreement, of not making another Senator appear foolish,
of not gulling a colleague or leading him on--these were the
traits most valued.\22\
---------------------------------------------------------------------------
\22\ Ross K. Baker, Friend and Foe in the U.S. Senate (Acton, MA:
Copley Publishing, 1999), p. 62.
Of course, Senators do not interact with one another in a
vacuum, so it stands to reason that broader shifts in American
politics would impact the opportunities Senators have to work
collaboratively. Political and environmental changes affecting
collaboration that were cited most frequently in response to
questions 2 and 3 are considered in the next section.
Factors Affecting Collaboration Over Time
As the political environment around it changes, so too does
the Senate. ``Everybody will agree that the Senate has
changed,'' remarked a veteran chief of staff, ``but we've
changed too.'' Or, as one Senator explained, ``the Senate
becomes a reflection of what goes on outside its Chambers.''
Senators and senior staff aides attribute contemporary change
in the Senate to a variety of factors; the most frequently
cited are identified in Table 1. Respondents report that
prospects for collaboration tend to vary on the basis of three
interrelated sets of developments in the contemporary Senate:
fewer opportunities for meaningful collegial interactions to
occur, greater ideological polarization, and a more assertive
Senate leadership operation brought about by a rise in dilatory
behavior.
It should be noted that interconnections are likely to
exist among these three developments. With increasing
ideological polarization, for instance, Senators are likely to
have a more difficult time finding common ground across party
lines, giving them fewer occasions to work together. Plus, with
less interaction and more polarization, Senate leaders,
especially those on the majority side, might face added
pressure to find new ways of doing business to get things done.
An assertive leadership operation, however, has its own
consequences--Senators take seriously their right to debate and
offer amendments--so efforts by the leadership to force their
hands are often met with howls of protest and dilatory tactics
that can further exacerbate tensions between and among
Senators. While interconnections exist among these three
developments, the report discusses each separately as they
relate to prospects for collaboration. Graphically, the impact
of these developments on collaboration can be displayed in the
following way:
Interaction + Polarization +
Leadership = Collaboration
Table 1. Factors cited as most consequential to collaboration
------------------------------------------------------------------------
Number of
Factor identified citations
(out of 16)
------------------------------------------------------------------------
Less collegial interaction......... Fewer families in DC.. 10
Fundraising demands... 6
Congressional 6
delegations.
Committee 3
participation.
Orientation programs.. 2
More ideological polarization...... More House Members.... 9
Fewer Governors....... 3
Interest groups....... 3
Primary voters........ 3
Redistricting......... 2
More assertive leaders............. More dilatory behavior 7
Amending strategies... 6
Leadership behavior... 6
------------------------------------------------------------------------
Fewer Collegial Interactions
To many respondents, withering senatorial interaction
characterizes life on Capitol Hill. ``Today there are fewer
opportunities for personal relationships,'' said a longtime GOP
Senator. A two-term Democrat explained, ``There are far fewer
genuine friendships today because Senators don't see each other
socially anymore.'' One Senator revealed, ``I don't know my
colleagues today like I used to,'' while another considered the
lack of interaction alarming. In his view, ``Today, there is
very little socialization. The lack of close friendships is a
huge factor in degrading the institution.''
senators and their families
During an earlier era, Senators were said to have more time
and a greater inclination to have substantive exchanges with
their colleagues. One reason for this, some respondents noted,
is that it was more common then for Senators to bring their
families with them to Washington, DC, and live within close
proximity to one another. ``Back when I served we all knew each
other, and we knew each other's families. Our children went to
school together,'' recalled one Senator, while another fondly
remembered how Ted Kennedy would play host to Senators and
their families. ``During the summer he would invite us over and
we'd go to the [National] Mall to enjoy music,'' said this
respondent. One Senator explained that these interactions are
why ``it's important for the families of Senators to live in
Washington.''
Socializing before or after hours used to happen more often
in the Senate than it does now, according to respondents. ``In
the evenings, Senators would hang around for a few pops,''
recalled one respondent. An especially popular gathering spot
was the office of the secretary for the majority. The
hospitable Stanley Kimmitt--secretary for the majority from
1977 to 1981--welcomed all comers in the late afternoon.
``These informal gatherings [at Kimmitt's office] were never
announced but everyone knew about them, and all Senators were
welcome,'' remembered a veteran leadership floor aide. To
another respondent, these gatherings illustrate how ``booze can
help smooth the legislative process.''
Senators who preferred different company could mingle at
Minority Leader Everett Dirksen's Capitol office. Dirksen
``would hold an open house each afternoon around 4 p.m. to talk
about upcoming legislation and share war stories,'' one
respondent said. ``Birch Bayh, Ted Kennedy, and I came often
and we bonded.'' Other respondents said that Senator Hank Brown
hosted bridge games at his home each week; Senators Mike
Mansfield and George Aiken met for breakfast nearly every
morning; and Senators Ted Stevens and Ed Muskie carpooled to
the Capitol Building each morning the Senate was in session.
One respondent made this observation:
A few decades ago it was common practice to disagree by day
and share a drink or a meal by night, as embodied in the
relationship between Tip O'Neill and Ronald Reagan, or between
Tip O'Neill and Bob Michel.
Today's Senate, by comparison, ``is less social and less
personal,'' which ``leads to problems,'' stated a chief of
staff. One reason for this, according to some respondents, is
that Senators spend less and less time in Washington. And the
less they are there, the fewer occasions they have to interact
with one another. One former Senator expressed this view
bluntly:
Collaboration is more difficult today for a whole host of
reasons, beginning with the fact that Senators don't live in
Washington to the same degree they once did. This is a full-
time job that can't be accomplished with part-time attendance.
Another Senator explained the challenge this way:
Senators have fewer opportunities these days to get to know
one another because they come in on Monday and leave on
Thursday. Many Senators don't bring their families to DC, which
creates added pressures to get back to their home States. As a
result, Senators and their families don't socialize like they
once did, which makes it harder to find legislative support,
especially bipartisan support.
A former majority leader expressed considerable difficulty
scheduling votes because ``the amount of time that Senators
spend in [Washington] DC has declined.'' He continued by saying
that ``Wednesday is the best day to hold a vote because most
everyone will be in town. Thursday is the second-best day.
Monday is the worst and Friday is bad too.''
fundraising
Some respondents attributed the paucity of social
interaction today to the exorbitant amounts of time and effort
they spend fundraising. As campaign costs have skyrocketed in
recent decades--most noticeably in States containing or
adjoining expensive media markets--an activity that was once
relegated to the final 2 years of a Senator's 6-year term now
begins right from the start. ``Senators start the campaign as
soon as they get reelected,'' explained a senior aide. ``This
wasn't always the case.'' One respondent reported that ``more
and more the focus is on fundraising and maintaining high
visibility.'' Another Senator shared this view:
Nowadays, Senators spend too much time raising money. When
I began my career [in the 1970s], I would raise money only
during the final 2 years of my term, but that is not feasible
today. The notion of a 6-year term with the first 4 years
devoid of campaigning is simply not the case anymore.
Senators generally viewed fundraising as unpleasant and
distracting--or worse. ``Perpetual campaigning undermines
bonding,'' said one Senator. Another reported, ``It's the money
and the failure to create community that makes policymaking
increasingly difficult.'' One Senator lamented that ``we never
stop running.'' To him, ``raising money and constantly
campaigning is poisonous to the political process.'' Another
respondent pointed out that ``Senators spend one-third of their
time on fundraising. The flow of money into campaigns ruined
everything.''
committee participation
Other respondents lamented a decline in committee
participation as a barrier to meaningful interaction. This
development represents a loss in the view of one respondent,
because some of the most important collaborative relationships
are borne in committee. As he explained, ``Kennedy and Hatch,
Kennedy and Enzi, Leahy and Specter, Frist and Kennedy,
Grassley and Baucus, Kerry and Lugar--these relationships
developed in committee.'' One former Senator lamented what he
considered a lack of sustained and indepth attention to
committee work today:
When I served [in the late 1960s], Senators were limited to
two major committee assignments and two minor ones. Now you're
on 4 major committees and up to 12 subcommittees. Back then
everybody would have at least one good committee assignment
where they could study the issues and specialize. Now
committees have huge staffs to compensate for the numerous
assignments of each Senator. It's too much to keep up with.
Another respondent, a former chief of staff to the
Appropriations Committee, shared similar views:
In the Appropriations Committee, we took great pride in the
process. We would sit in conference [with the House], 3
Senators and 70 House Members, which was long and tedious but
we did it. Now staff handles all the negotiations. It's Kabuki
theater. Everyone sits at the conference table for a short
period of time and then everyone adjourns to let staff handle
the details. The disengagement by Members is deplorable in my
view.
congressional delegations
Beyond interactions that occur in committee, some of the
best opportunities Senators say they have to interact with
colleagues occur on congressional delegation missions abroad
(or ``codels''). Some respondents described meeting colleagues
on these trips they were previously unfamiliar with but who
later became close allies. One former Senator had this to say
about the benefits these missions provide:
I'm a huge believer in the trips because they provided
opportunities to bond. And bonding is essential to compromise.
Close ties develop on these trips, which are essential to the
process, because when you bond you're more likely to listen to
the other side.
``Codels help us bond,'' reiterated another respondent. As
another Senator reported, ``The drop in codels means that there
are fewer opportunities for meeting colleagues. Now only a few
key events for meeting colleagues remain--the White House
Christmas party, the summer barbeque, and dinner with the
Supreme Court.'' A similar view was shared by another
respondent:
Codels provide one of the few remaining opportunities for
Senators and their families to get to know one another. We need
more codels. This is one of the few opportunities [Senators]
have to talk to each other.
orientation programs
Two respondents identified orientation programs for new
Members of Congress as especially important venues for
developing relationships and learning how to perform in a new
position.\23\ One Senator viewed his orientation experience
this way:
---------------------------------------------------------------------------
\23\ During an orientation program for new Members in 2004, the
wives of newly elected Senators Barack Obama and Tom Coburn formed a
bond that materialized into a working relationship between their
husbands. Senators Obama and Coburn, ideological opposites by almost
any measure, collaborated on a range of issues and proposals, including
the Federal Funding Accountability and Transparency Act, a bill that
created a searchable database of Federal spending. That bill (S. 2590)
was signed into law by President George W. Bush on September 26, 2006.
When I was elected to the House in 1982, I was invited to
Harvard for an issues conference for new Members. Boxer, Reid,
Richardson, Spratt, Durbin, McCain, Ridge, Casey, DeWine--we
all attended the same conference. We stayed in the same hotel.
We ate our meals together. We socialized together. We attended
meetings together. The entire experience allowed for a great
---------------------------------------------------------------------------
deal of bonding.
Many of these opportunities have now become a thing of the
past. As one Senator explained, ``When I got to the Senate, I
asked Mark Pryor about orientation. He told me there's not much
of one in the Senate.'' The Senator viewed this as problematic
because ``collaboration can't happen without some familiarity
of one's colleagues.'' He then recounted an effort to
compensate for this perceived deficiency:
It was during a breakfast with David Broder, George
Voinovich, Lamar Alexander, Bob Dole, and Tom Daschle that we
talked about ways to bridge the partisan divide and decided to
put together a ``new Senators'' school. The idea was for
Senators and their families to live in close proximity for a
period of time to allow them to get to know each other before
starting work. We wanted them to all share the same bathroom,
so to speak. The first year was 2006 and we had eight
Republicans and two Democrats, including a fellow from Oklahoma
named Coburn and a junior Senator from Illinois. And you know
what happened? Coburn and Obama hit it off and remain close
friends today.
More Ideological Polarization
With fewer ideological moderates in the Senate and a
widening chasm between the views of each party's conference,
Senators and senior staff say they have a harder time finding
colleagues with whom to work than they once did, especially
those from the other party. Ideological polarization, in the
view of one Senator, helps explain why ``cross-party
collaboration has decreased noticeably'' during his 30 years in
office. Another Senator explained, ``Ideological polarization
hurts the ability of Senators to collaborate because it makes
it harder to find common ground.'' Of course, as noted earlier,
others expressed difficulty in working with moderates because
those Senators were said to ``change their tune most often.''
Respondents attributed the rise of polarization inside the
Senate to several key developments, including an influx of more
ideological Members into the Senate from the House, a more
combative and conflict-driven media, and a greater reliance by
Senators on the interest group community for political and
financial resources.
house members
To be sure, the modern Senate has long been populated by
former House Members, but many respondents viewed ideological
polarity as a natural consequence of more Members of the House
gaining election to the Senate and ascending the ranks of the
party leadership. ``House Members are educated in madrassas
where the singular and dominant ideology is reelection,''
explained a former Republican Senator. ``Then they bring that
over here [to the Senate].'' According to another Senator, when
House Members from ``boutique districts'' arrive to the Senate,
``their mindset remains the same.'' Redistricting, in his view,
contributes to polarization by creating ``a new kind of elected
official who wins [comfortably] in the House and comes to the
Senate to do battle.'' In the view of this Senator, ideological
lines became more pronounced ``during the mid-1990s, [when]
there was a mass exodus of moderates from the Senate and they
were all replaced by those at the ideological extremes.''
``This new breed of Senator,'' in the view of one chief of
staff, ``made compromise more difficult.'' Another Senator
explained that ``since 1994, a number of House Members have
been elected to the Senate, but the Senate requires a different
mentality than the House.''
What William White once called the ``Senate type''--``a man
for whom the Senate as an institution is a career in itself, a
life in itself and an end in itself''--seems less fitting
today.\24\ One respondent familiar with White's work made this
point directly while others expressed a similar sentiment by
contrasting Senators who formerly served in the House with
those who were once Governors. Former House Members were said
to pursue a more ideological agenda upon entering the Senate in
comparison to former Governors because, according to a chief of
staff, ``Governors are used to governing and working with the
other party.'' This respondent considered it a troubling
development that ``there are fewer former Governors in the
Senate than there used to be.'' ``Of all my friends in the
Senate who also served as Governors, not a single one of them
would rather be a Senator than a Governor,'' one respondent
explained. In the experience of this former Governor turned
Senator, life in the Senate became increasingly ideological and
more difficult to endure over the course of his career. ``I was
much happier as a Governor than as a Senator,'' he said,
``because as Governor I could play a more pragmatic role in
public affairs.'' This view was shared by a veteran chief of
staff who said that ``Governors don't like it here.''
---------------------------------------------------------------------------
\24\ White, Citadel, p. 84.
---------------------------------------------------------------------------
media
Several respondents also highlighted changes in how the
print and electronic media cover campaigns, elections, and the
political process as a consequential hindrance to
collaboration. On this point, the views of one former Senator
were typical:
Politics is much meaner today. Campaigning has devolved
into what can be featured in 30-second negative advertisements,
so Senators are continually concerned about their actions being
used against them down the line. This harms the ability of
Senators to achieve common ends.
Around-the-clock media coverage emphasizing conflict over
compromise means that ``Senators are watching their step
constantly'' and ``focus a great deal on the possibility of
attack ads,'' according to a former Senator who considers
negative campaigning destructive to collegial interaction. He
continued by saying that ``as soon as they are sworn in,
Senators assume defensive postures and work to cover their
[expletive],'' because ``the nature of politics today is all
about attack ads,'' which ``negatively affect governing'' and
cause ``the loss of bipartisanship'' in the Senate.
``The press is after serial panic,'' explained a former GOP
chief of staff who considers the media biased in favor of
conflict and entertainment. As he sees it, ``cable news gets
two hedgehogs to square off, but we need more foxes like Walter
Cronkite.'' During Cronkite's era, news broadcasts were just
that: broadly cast to a wide audience. Nowadays broadcasting
seems to have been replaced by ``narrowcasting,'' whereby media
outlets tailor their informational content to smaller and more
homogeneous segments of the American public. The prevalence of
narrowcasting on cable news, the radio, and the Internet led a
former majority leader to remark that today's media ``is
driving the bitterness and the degradation of civility.''
interest groups
Even more troubling to some respondents is the relationship
that exists between Senators and interest groups, especially
when it comes to campaign financing.\25\ Lobbyists ``make a
living by keeping Members of Congress happy with campaign
money,'' explained a former chief of staff. ``The constant
quest for campaign dollars is detrimental to the ability of the
political system to reach compromise, [because] once the
lobbyists come in, positions among Senators tend to stiffen.''
He also made this observation:
---------------------------------------------------------------------------
\25\ For more information on the proliferation of interest group
activity on Capitol Hill in recent decades, see Allan J. Cigler and
Burdett A. Loomis, Interest Group Politics, 7th ed. (Washington, DC: CQ
Press, 2006).
There are way too many spokesmen for national groups.
Interest groups and their spokesmen in the Senate harden their
issue positions to prevent compromise, which undermines the
work of the Senate. The key to the Senate is the ability to
---------------------------------------------------------------------------
bargain.
One Senator reported that over the course of his 30-year
career, ``pressures on Senators intensified tremendously during
my time in office as constituent groups and political money
people began to dominate.'' Another expressed concern at
dramatic increases in campaign costs, because, in his view, the
exorbitant cost of campaigning for a Senate seat encourages
close relationships to develop between elected officials and
well-financed interest groups. ``Normal citizens can't run for
office. To run, you have to be financially wealthy or obligate
yourself to special interests,'' he lamented. ``As parties
decline, interest groups take over,'' another Senator
explained.
primary voters
Other respondents correlate polarization in the Senate with
the ideological intensity of voters in primary elections. In
comparison to general election voters, primary voters are more
active politically and tend to hold more polarized ideological
views.\26\ To win primary elections, candidates must appeal to
this set of voters or risk losing their seats to more
ideologically suitable challengers. As one senior Republican
explained, ``We've empowered the ideologues, which drove Arlen
Specter to make the choice he made.'' Rather than face
Pennsylvania's GOP primary voters in a race against a more
conservative challenger, Specter, a five-term Senator, shed his
Republican affiliation and competed in the Democratic primary
instead. Viewed as a moderate, polls showed Specter trailing by
15 points among Republican primary voters at the time he
departed the party, a clear sign of trouble ahead.
---------------------------------------------------------------------------
\26\ See, for instance, Pew Research Center for the People & the
Press, ``Political Polarization in the American Public: How Increasing
Ideological Uniformity and Partisan Antipathy Affect Politics,
Compromise and Everyday Life,'' Washington, DC, June 12, 2014.
---------------------------------------------------------------------------
Assertive Senate Leadership
Withering social interaction, heightened ideological
polarization, or some combination of the two were cited by
nearly all respondents as key influences that negatively affect
collaborative opportunities, especially across the aisle. A
third development respondents cited, also negative, involves
the rise of obstructionism and the corresponding efforts Senate
leaders have taken to exert some control over the Senate's
agenda. While Senate leaders do not possess the impressive
variety of parliamentary powers their counterparts in the House
command, they now appear more willing to use the procedural
advantages they have at their disposal to overcome dilatory
behavior. Some respondents report that this kind of leadership
behavior can inflame hostilities within the Chamber.
Contemporary Senate leaders have colorfully compared the
challenge of Senate leadership to such metaphorical tasks as
``pushing a wet noodle'' (Howard Baker), ``herding cats''
(Trent Lott), or ``loading frogs into a wheelbarrow'' (Tom
Daschle).\27\ In Bob Dole's view, ``there's a lot of free
spirits in the Senate. About 100 of them.'' \28\ To be sure,
building coalitions around shared goals takes a great deal of
time and energy, especially in an institution that favors
individual expression over leadership direction. Senators who
find themselves on the receiving end of an objectionable
leadership directive usually have recourse to delay or
reconsider action, a conundrum for the leadership.
---------------------------------------------------------------------------
\27\ On the role Senate leaders play and the challenges they
confront in managing the Chamber, see Steven S. Smith, Party Influence
in Congress (New York: Cambridge University Press, 2007); and Brendan
J. Doherty, ``Meeting the Challenges of Senate Leadership,'' PS:
Political Science & Politics (April 2007), pp. 422-424.
\28\ Alan Ehrenhalt, ``Senate Leader's Job: Curbing
Individualism,'' Congressional Quarterly Weekly Report, April 7, 1984,
p. 819.
---------------------------------------------------------------------------
dilatory behavior
As ideological lines have sharpened between the two Senate
parties in recent years, dilatory behaviors have increased
dramatically. ``The filibuster [and its threat] is tremendously
overused,'' explained a 30-year veteran of the Chamber. ``Now
the minority insists on 60 votes before anything is actually
considered, which leaves no room for adjustment. But the
majority won't give [the filibuster] up because it might find
itself in the minority one day.'' The majority leader can
counter dilatory actions with his own ``hardball'' procedural
maneuvers, such as ``filling the amendment tree'' to forestall
amending opportunities during floor consideration.
As Senators have become more willing to use the full range
of parliamentary tools they each possess, a corresponding
effort has been made by Senate leaders to find new ways to move
legislation and other matters through the Chamber. In the view
of some respondents, heightened interparty competition over
agenda control creates a strain on relationships that hinders
collaborative efforts from taking place, especially across
party lines. The emergence of a more confrontational Senate,
they say, can be blamed on what they characterize as an overuse
of Senate procedure for individual or partisan gain, an ``abuse
of procedural strategy'' in the view of one former majority
leader. Continuing conflict on issues of civil rights; the
election of younger, more ideological, and more assertive
Senators (many of whom ascended to leadership positions); and
polarization between the two parties created what one
respondent called a ``procedural arms race'' over control of
the Senate agenda. A chief of staff to a recent majority leader
contrasted this procedural environment with what his boss'
predecessor, Lyndon Johnson, confronted:
Johnson wouldn't bring anything to the floor without a time
agreement, and Baker moved on unless amendments were offered in
a timely manner. Today's environment is different. Non-germane
amendments are important weapons of the minority party. The
strategy now is: ``You give us votes on our [non-germane]
amendments, and we'll give you a time agreement.''
amending strategies
The Senate's amendment procedures allow Senators to propose
any number of changes to a bill, including those that are
unrelated (nongermane) to the matter at hand. As Senators move
further apart from one another socially and ideologically, they
appear more willing to use the Senate's permissive amending
rules to force votes on controversial items that they think
will give them an advantage over the opposition come election
time. As a top aide to the Democratic leadership explained:
Depending on majority status, floor strategies are driven
by the need to avoid tough votes or force tough votes. Now we
have ``message amendments,'' which is a relatively new concept
here. Those amendments are written with a 30-second campaign
advertisement in mind.
Many so-called ``message amendments''--nonrelevant
amendments crafted for political messaging purposes--``are more
geared toward superficial issues that divide Senators for
political gain rather than policy improvement,'' according to
one veteran Senator.\29\ In his view, the amending activity
that occurs today is motivated more by partisan considerations
than a genuine desire to improve a bill. ``Amendments used to
be about the substance of the bill,'' he explained. ``They used
to be serious. It's an entirely different proposition now.'' He
also made a distinction between ``substantive'' or ``serious''
amendments--amendments motivated by a desire to improve
legislation--and ``superficial'' amendments designed ``just to
hit political buttons.'' Another respondent, a two-term
Democrat, expressed dismay that ``a huge amount of time is
spent crafting amendments to divide Senators for purposes of
election.'' A former chief of staff to several Republican
Senators offered more animated remarks. As he put it, ``What
kills you is a string of votes on a reconciliation bill
designed to divide Senators every which way. Most of these
amendments deal with social issues or the party message and not
the underlying bill.''
---------------------------------------------------------------------------
\29\ For additional insight into the strategic considerations and
procedural tactics congressional leaders employ to send political
messages to voters, see C. Lawrence Evans, ``Committees, Leaders, and
Message Politics,'' in Congress Reconsidered, 7th ed., Lawrence C. Dodd
and Bruce I. Oppenheimer, eds. (Washington, DC: CQ Press, 2001).
---------------------------------------------------------------------------
Unless Senators can agree to limitations on amending
activity ahead of time, preserving the content of legislation
from nongermane amendments can be a challenge for the
leadership. A former chief of staff to Majority Leader Bill
Frist illustrated this point by recalling a recent effort by
Senate Democrats to force action on a number of amendments
opposed by the leadership. ``[Senator] Lugar brought out a
nothing State Department authorization bill in 2003, and we let
it go for a day or two,'' he reported. ``Nongermane amendments
came out from everywhere, so much so that we had to pull the
bill down.'' Another chief of staff recalled a similar
instance. ``We put the bill up for 30 days and people were
bringing amendments by constantly,'' he said. ``It was a total
mess.''
leadership behavior
Reacting to the explosive growth of nongermane amending
activity in recent decades, Senate leaders have sought new ways
to exercise control over the agenda. Perhaps the most
controversial way they do this is to block the consideration of
objectionable (often nongermane) amendments by ``filling the
amendment tree'' on pending legislation, using the majority
leader's right to first recognition on the Senate floor.
Several respondents suggested that Majority Leader Byrd first
developed this procedural innovation in the 1980s, and the
tactic caught on because, as one Senator noted, ``When one side
adopts a tactic, the other side adapts.''
Another respondent, a former party secretary, explained how
an increasingly partisan and assertive leadership operation
emerged over the course of his 30-year career. ``I could count
on one hand the number of times that George Mitchell filled the
tree,'' he stated. ``Even then, it was done only in
consultation with the minority leader and when the Senate faced
a serious time constraint.''
In previous years the Senate routinely considered
amendments ``side by side.'' Under this arrangement, floor
amendments proposed by the majority and minority parties would
be debated at the same time, allowing for some comparison to
occur between the merits of various proposals before they were
put to a vote. This provided all Senators with a greater voice,
a chance to advance their own policy ideas, an opportunity to
gain a ``clean'' vote (no second-degree amendments were
permitted), and, arguably, more incentive to allow the debate
to move forward. In the view of a former top aide to Majority
Leader Frist, the procedural innovations made by recent Senate
leaders to retain some control over amending activity and
debate--for example, more cloture petitions, full amendment
trees, omnibus bills, and use of reconciliation--are natural
reactions to dramatic increases in dilatory behavior.
In addition to the procedural innovations they have made in
recent years, Senate leaders appear more dedicated to the task
of maintaining a unified caucus across a wide range of policy
fronts. ``Leaders place enormous pressure on Senators regarding
votes and the Senate schedule,'' a former majority leader
explained. Another Senator characterized today's Senate parties
as ``cheerleading camps.'' One respondent expressed similar
disdain for leadership efforts to keep Senators ``on message.''
``We go to the message meetings to learn about the upcoming
schedule and not to learn how to regurgitate the party message
that week,'' he said.
Collaborative Relationships in Lawmaking
Most respondents (with one exception) consider the
relationships Senators have with one another as central to
Senate lawmaking, but the consensus view among them is that
working collaboratively, especially across the aisle, is harder
than ever in today's Senate. With fewer occasions for collegial
interactions, greater ideological polarization between the two
parties, and a more assertive leadership operation, the
incentives and opportunities Senators have to work together
appear limited. ``It's a bad, bad situation out there,''
observed one Senator when asked about prospects for
collaboration. ``There is so much partisanship that it is hard
to compromise.'' One respondent indicated that ``a lot boils
down to friendship [in the Senate], but opportunities have
diminished over the years.'' In the view of one chief of staff:
The fundamental exchange of views is defunct, which
produces a chilling effect on collaboration. Shouting down
colleagues has replaced efforts to listen to them. The
lubricants of relationships don't exist today.
Some amount of cooperation is usually required for
legislation of any real substance to pass the Senate.
Respondents conveyed this point using a range of examples,
three of which were especially revealing. The first illustrates
how personal relationships can promote cooperation among
colleagues during Senate deliberations, while the second and
third examples demonstrate the important role collaborative
relationships can play in Senate lawmaking.
During the 1970s, on mornings the Senate was in session,
Senator Ed Muskie, a liberal from Maine, and Senator Ted
Stevens, a conservative from Alaska, carpooled together to the
U.S. Capitol. Despite their political differences, these rides
allowed them to develop a close relationship and a willingness
to help one another. In the car one morning, Stevens asked
Muskie to call up an amendment on his behalf to protect Alaskan
fisheries, a key source of economic activity in his State,
during debate on an energy and water appropriations bill. A
markup session scheduled in one of Stevens' committees would
prevent him from offering his amendment ahead of the final vote
scheduled later that day. ``Of course,'' agreed Muskie.
After getting sidetracked during the day, Muskie simply
forgot to introduce his colleague's amendment as he had agreed
to do. By the time Stevens' committee adjourned, the final vote
was already underway. Upon reaching the floor and realizing
that his amendment was missing from the bill and time for its
consideration had expired, the fiery Stevens went to Muskie and
asked, ``How could you forget to do this?'' Stevens then
unleashed a torrent of frustration using language that
attracted notice. Hearing the exchange between an aggrieved
Stevens and an apologetic Muskie, Majority Leader Mike
Mansfield approached the two and admonished Stevens for his
choice of language. ``We don't use profanity on the Senate
floor,'' the majority leader told Stevens. At that point Muskie
intervened to accept responsibility and explained to the
majority leader that it was his fault for failing to honor a
commitment he made to his colleague.
``Well, in that case,'' said Mansfield as he returned to
his desk to try to remedy the problem. As Senators mingled
about the well of the Chamber waiting to vote, Mansfield sought
recognition from the Presiding Officer and made an unusual
request for any Senator to make while a vote was already
underway. What happened next was unprecedented. First, the
majority leader suspended the vote. Then he asked his
colleagues, most of whom were present on the floor, to accept a
unanimous consent request adding the Stevens amendment as
currently written to the appropriations bill without debate.
Hearing no objection, the Stevens amendment was adopted by
voice vote and folded into the bill. The majority leader then
resumed the vote, and the energy and water appropriations bill
passed.
To be sure, suspending a vote midstream to add an amendment
without debate and resuming the vote on a now-amended bill is
in violation of Senate rules. The lesson here, however, is that
Senator Mansfield considered it an offense for Senator Muskie
to have failed to protect the parliamentary rights of his
colleague to amend legislation, as he had agreed to do.
Mansfield's decision to allow a junior Senator of the minority
party to amend an appropriations bill at the very last minute--
all because Muskie forgot to carry through on a prior
commitment--illustrates how relationships within the Chamber
can promote a spirit of cooperation among colleagues and a more
inclusive deliberative process. Worth noting is that Senators
Muskie and Stevens continued to carpool together after this
episode.
Another respondent, a liberal member of the Judiciary
Committee during the 1960s, also depicted a more accommodating
and cooperative period in the Senate by recalling an instance
in which he and other liberal members of the committee drafted
legislation to do away with the ``blue-ribbon'' jury selection
process that was common in many parts of the South. In their
view, the blue-ribbon process conflicted with the civil rights
of the accused, often African Americans, because those juries
were hand picked by prominent citizens and governing elites.
Since average citizens, including many African Americans, were
not allowed to serve on these juries, liberals on the committee
believed that blue-ribbon panels perpetuated racial
discrimination.
Two prominent Senators stood in the way of this proposal:
Roman Hruska, who served as ranking minority member of a key
judiciary subcommittee, and committee member Strom Thurmond--
neither of whom was especially sympathetic to civil rights. As
the Senator explained, ``We sent something up that would have
done away with the blue ribbon jury selection system, but with
Hruska and Thurmond on the committee, that bill was dead as a
doornail. So I sat down with Hruska and we talked about holding
hearings and working together on jury reform. And we did.'' In
this instance, collaboration was possible only because ``we [in
committee] promised to work very hard not to embarrass each
other.'' To minimize the expected political outcry from Senate
conservatives, they agreed to a deal whereby the liberal
proposal would be considered on a day when Hruska and his
fellow conservatives were ``out of town.'' The Senator
explained that by working together in this way:
We hashed out a jury reform bill that came out of
subcommittee unanimously. It passed the full committee
unanimously. And it enjoyed overwhelming support on the Senate
floor. That's the way it worked, and that's the way it should
work.
Important collaborations occur outside the Senate as well.
According to one respondent, the close working relationship
between Senators Sam Nunn and Richard Lugar was formed when
they both attended a weeklong educational seminar held in
Budapest, Hungary, in 1983. The purpose of the seminar,
according to a former Senator who ran this session and many
others like it, was to educate lawmakers on nuclear arms
issues. ``I wanted to change the situation that existed at the
time where political leaders did not know preeminent experts
across a wide range of issues,'' he said, while also
acknowledging that his seminars ``had the effect of bringing
Members from different parties together around the same table
for a healthy exchange of ideas.'' The 1983 seminar in
Budapest, for instance, allowed Sam Nunn and Richard Lugar to
develop the groundwork for what later became the Nunn-Lugar
Cooperative Threat Reduction Program, a program enacted in 1992
to secure and dismantle nuclear weapons located in former
Soviet states. ``That [Nunn-Lugar] and many other major laws
were inspired by collaboration among participants in the
program,'' he reported.
These instances of Senate lawmaking reflect a more
collaborative era in the Senate, a time when Senators had close
relationships with each other and were more accommodating to
one another than they seem to be today. The successful outcomes
achieved through each of these legislative efforts--to protect
fisheries in Alaska, to ensure fairness in jury selection, and
to safeguard nuclear weapons following the collapse of the
Soviet Union--were facilitated in part by relationships between
Senators of different parties. These personal relationships
were able to develop through some frequency of interaction,
whether in the car on their daily commute to the Capitol, in
the committee room, or on a congressional delegation to
Budapest.
As fewer occasions exist today for these kinds of
interactions to occur, which most respondents cited as being
the case, Senators have a more difficult time working with and
trusting their colleagues. The absence of collaborative
relationships built on trust--and avenues to pursue that
virtue--exacerbates polarization between the two parties and
dampens prospects for collaboration to occur. To achieve some
measure of cooperation in the face of these challenges, one
former Senator suggested that ``the solution has to involve
inclusion.'' In his view, ``What we need is more
bipartisanship, not less. More collaboration, not less. More
friendships, not less.'' Or, as one chief of staff put it: ``In
the Senate, there is no magical crank to make things happen.
It's all about relationships.''
For the past several decades, the spatial model of
legislative behavior has been the main conceptual frame for
understanding legislative outcomes. That model emphasizes
legislators as free-floating and independent ideal points in
policy space. What is missing from spatial theory is the
essential social nature of legislative life. As Richard Fenno,
Nelson W. Polsby, John Kingdon, Charles O. Jones, and other
congressional scholars of their generation demonstrated, the
interactions that occur between and among lawmakers are
important and can create opportunities for collective action
and legislative accomplishment that might not exist in the
absence of collaborative relationships.
The 113th Congress and the U.S. Population: Discussion and Analysis of
Selected Characteristics
Jennifer D. Williams
Specialist in American National Government
and
Ida A. Brudnick
Specialist on the Congress
and
Jennifer E. Manning
Information Research Specialist
----------
Sociodemographic comparisons between Members of the
113th Congress as of January 2013 and the U.S.
population show that Members had a higher median age
than the larger population and were more likely to be
males; to be non-Hispanic whites; and to have higher
educational attainment and occupational levels (for
Members, their prior occupations). Members also were
more likely to report religious affiliations,
particularly Protestant, and to report having served in
the military. The data on age, educational attainment,
and occupational levels indicate that Members have the
life experiences and qualifications to be expected of
those chosen for some of the most demanding national
offices. A look at Members over time shows that they
have become more diverse in gender, race, ethnicity,
and religion. What Members' sociodemographic
characteristics mean for their political behavior and
policy outcomes remains a matter for further scholarly
investigation.
Introduction
This report compares certain sociodemographic
characteristics of Members of the 113th Congress with those of
the contemporary U.S. population, after citing the principal
sources and limitations of the data used for the comparisons.
The basic characteristics of age, sex, race, and ethnicity are
discussed, along with education, occupation, religion, and
military service. The report next examines Members'
sociodemographic characteristics over time--considering, for
example, their increasing racial and ethnic diversity as well
as the growing number of women in Congress. Finally, it notes
that students of Congress have examined, but not determined,
whether Members' sociodemographic characteristics influence
their political behavior and legislative effectiveness.
Methodology, Data Sources, and Data Limitations \1\
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\1\ The sociodemographic comparisons of the 113th Congress with the
U.S. population were written by Jennifer D. Williams. Data about
Members of the 113th Congress were provided by Jennifer E. Manning.
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The comparisons that follow between Members and the larger
U.S. population reflect the composition of Congress when it was
seated on January 3, 2013. The House has 435 seats for
Representatives and 6 seats for Delegates and the Resident
Commissioner of Puerto Rico. Computations relating to all House
Members (including Delegates and the Resident Commissioner) are
thus based on 441 seats; computations concerning
Representatives only are based on 435 seats. Computations
concerning the Senate are based on its 100 seats. Where noted,
computations for the 113th Congress may be based on the number
of House seats with or without Delegates, plus the 100 Senate
seats.
The ultimate source of data about Members is the Members
themselves. The U.S. Census Bureau's American Community Survey
(ACS) \2\ is a major source of data concerning the makeup of
the general population. ACS respondents provide information
about themselves and those living with them. Unlike the data
for Members, however, the ACS data are sample-survey estimates
and are subject to sampling error. Below are some other points
to note about the data; several additional points are discussed
as the data are presented.
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\2\ For a discussion of the ACS and ACS data, see CRS Report
R41532, The American Community Survey: Development, Implementation, and
Issues for Congress, by Jennifer D. Williams.
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Occupational data for Members refer to their occupations
before they were seated in the 113th Congress. The occupational
categories used by the Census Bureau do not correspond exactly
to those reported by Members, nor does the way the ACS presents
data on military service exactly match what is reported for
Members.
Because the Census Bureau does not collect data on
religion, the religious-affiliation data for the U.S.
population are from the Pew Forum on Religion and Public Life.
Age
The median \3\ age of the U.S. population in 2013 was 37.6
years,\4\ compared with 57.5 years for Representatives and 61.7
years for Senators at the beginning of the 113th Congress.\5\
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\3\ The median is the midpoint of a distribution, such as an age
distribution. Half the values lie above the median, and half below.
Stated another way, the median is ``the middle item of a set of numbers
when the items are ranked in order of magnitude.'' Kenneth J. Meier and
Jeffrey L. Brudney, Applied Statistics for Public Administration
(Pacific Grove, CA: Brooks/Cole Publishing Co., 1987), p. 23.
\4\ U.S. Bureau of the Census, ``As the Nation Ages, Seven States
Become Younger, Census Bureau Reports,'' press release CB14-118, June
26, 2014, at http://www.census.gov/newsroom/ releases/archives/
population/cb14-118.html.
\5\ CRS Report R42365, Representatives and Senators: Trends in
Member Characteristics Since 1945, coordinated by R. Eric Petersen, p.
3.
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Several factors help explain why Representatives and
Senators have higher median ages than the U.S. population.
The Census Bureau computes median age based on the ages of
the entire resident population--from newborn infants to the
most aged elderly. Members of Congress, in contrast, are an
age-restricted group. Article I, Section 2 of the Constitution
stipulates that ``No Person shall be a Representative who shall
not have attained to the Age of twenty-five Years, and been
seven Years a Citizen of the United States . . . .'' In
accordance with Article 1, Section 3, ``No Person shall be a
Senator who shall not have attained to the Age of thirty Years,
and been nine Years a Citizen of the United States . . . .''
These limits were established at a time of high mortality and
low life expectancy. Despite the fact that many in the general
population did not achieve longevity, those who held high
office were expected to have been U.S. citizens for substantial
lengths of time and to have acquired a degree of maturity and
experience reflected in the minimum ages for congressional
service.\6\
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\6\ See, for example, comments by the legal scholar and U.S.
Supreme Court Justice Joseph Story (1779-1845) regarding the minimum
ages for Representatives and Senators, in Philip B. Kurland and Ralph
Lerner, eds., The Founders' Constitution, Article I, Section 2, clause
2, vol. 2, document 10, 616; and Article I, Section 3, clause 3, vol.
2, document 2, 727 (Chicago, IL and Indianapolis, IN: University of
Chicago and Liberty Fund), at http://press-pubs. uchicago.edu/
founders/.
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Moreover, the median age of the U.S. population is affected
by fertility, but the median ages of Representatives and
Senators are not. Populations with higher fertility rates tend
to have younger age structures. The U.S. population is aging
not only because people live longer than was historically the
case, but also because fertility rates are relatively low, as
compared with fertility rates in many developing countries
today. Representatives and Senators may have higher median ages
partly because of their length of congressional service--a
median of 6.0 years for Representatives, 6.0 years for
Senators, and the same for Congress overall \7\ --their ages
when first elected to Congress, or both, in addition to
contemporary life expectancy.
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\7\ Calculations are as of the commencement of the 113th Congress.
Median service in the House, beginning on January 3, 2007, was 6.0
years, or three terms completed; in the Senate, beginning on January 3,
2007, 6.0 years, or one term completed; and in Congress, beginning on
January 3, 2007, 6.0 years.
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Immigration also affects the age structure of the U.S.
population, but not of Congress, in two ways. Immigrants, who
are often young, add themselves to the population, and any
children they have after settling in their adopted country are
added as well. Without immigration, the median age of the U.S.
population likely would be higher than it is, but the median
ages of Representatives and Senators would be unaffected.
Sex
Although women constituted about one-half of the U.S.
population in 2013 (50.8 percent female versus 49.2 percent
male),\8\ they were not quite one-fifth (18.3 percent) of
Representatives and Senators in January 2013. Nevertheless, the
new 113th Congress had a record-high number of women. The House
of Representatives was 17.9 percent female, with 78 women (not
including 3 female Delegates); 20 female Senators made up 20
percent of that Chamber. The female Delegates plus
Representatives yielded a total of 81 women in the House and
101 in Congress, so that women accounted for 18.4 percent of
the House and 18.7 percent of Congress.\9\
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\8\ U.S. Bureau of the Census, ``USA QuickFacts,'' at http://
quickfacts.census.gov/qfd/states/00000.html.
\9\ CRS Report RL30261, Women in the United States Congress, 1917-
2014: Biographical and Committee Assignment Information, and Listings
by State and Congress, by Jennifer E. Manning and Ida A. Brudnick, p.
1. See also CRS Report R43244, Women in the United States Congress:
Historical Overview, Tables, and Discussion, by Jennifer E. Manning,
Colleen J. Shogan, and Ida A. Brudnick.
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Race and Ethnicity
According to the Census Bureau's latest population
estimates, Hispanics or Latinos (hereafter, Hispanics) were the
largest minority group in the United States in 2013, making up
17.1 percent of the total population. The bureau, following the
Office of Management and Budget's designations of race and
ethnicity for Federal reporting purposes, considers Hispanics
to be an ethnic group whose members may be of any race. Thus,
all racial groups can include certain numbers of Hispanics.
Whites were the largest racial group in 2013, constituting
77.7 percent of the U.S. population. Blacks or African
Americans accounted for 13.2 percent; Asians, 5.3 percent;
Native Hawaiians and other Pacific Islanders, 0.2 percent (0.23
percent); and American Indians and Alaska Natives, 1.2 percent.
People classified as belonging to two or more races were 2.4
percent of the total.\10\
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\10\ U.S. Bureau of the Census, ``Facts for Features,'' CB14-FF.17,
June 26, 2014, at http://www.census.gov/newsroom/releases/archives/
facts_for_features_special_editions/cb14-ff17. html; and American
FactFinder, ``2013 Population Estimates,'' PEP ALL6N, at http://fact
finder2.census.gov/rest/dnldController/deliver?_ts=425572753058.
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Removing Hispanics from each of the racial categories (as
examples, non-Hispanic whites and non-Hispanic blacks or
African Americans) lowers these proportions. Without Hispanics,
whites were 62.6 percent of the total U.S. population in 2013;
blacks or African Americans, 12.4 percent; Asians, 5.1 percent;
Native Hawaiians and other Pacific Islanders, nearly 0.2
percent (0.17 percent); American Indians and Alaska Natives,
0.7 percent; and people of two or more races, 2.0 percent.\11\
The sum of these percentages, added to the 17.1 percent who
were Hispanic, equaled the total population.
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\11\ U.S. Bureau of the Census, ``2013 Population Estimates,''
PEPSR6H, at http://factfinder2. census.gov/faces/tableservices/jsf/
pages/productview.xhtml?src=bkmk.
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The following data for Congress are as of January 2013 and,
except where noted, present racial categories separately from
Hispanic ethnicity. The data indicate that the new Congress had
a higher proportion of non-Hispanic whites than the U.S.
population and lower proportions of most non-Hispanic racial
minorities, as well as of Hispanics. Only the small non-
Hispanic Native Hawaiian and other Pacific Islander category
constituted about the same proportion of Representatives plus
Senators (0.19 percent) as of the U.S. population (0.17
percent).
The 113th Congress was sworn in with 452 white Members,
with 357, including 1 Delegate, in the House and 95 in the
Senate. They constituted 81.0 percent of the House, 95.0
percent of the Senate, and 83.5 percent of Congress.
Subtracting the Delegate left 356 white Representatives. They
made up 81.8 percent of the House and, with the 95 Senators,
84.3 percent of Congress.
The House had 41 black or African American Members,
constituting 9.3 percent of the House; the Senate included one
black or African American Member, who was 1.0 percent of the
Senate; and Congress had 42, constituting 7.8 percent of
Congress. Two of the 41 in the House were Delegates. The
remaining 39 Representatives accounted for 9.0 percent of the
House; they plus the Senator were 7.5 percent of Congress.\12\
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\12\ For changes after January 2013, see CRS Report R42964,
Membership of the 113th Congress: A Profile, by Jennifer E. Manning, p.
8.
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Nine Asian Members, including eight Representatives and one
Senator, made up 1.8 percent of the House, 1.0 percent of the
Senate, and 1.7 percent of Congress.
Three Members belonged to the Native Hawaiian and other
Pacific Islander racial category. All were in the House, and
all were Pacific Islanders. Two were Delegates, one of whom
also was Hispanic. The three made up 0.7 percent of the House
and 0.6 percent of Congress. Not including Delegates, the House
was 0.2 percent (0.23 percent) Pacific Islander, and this
category constituted not quite 0.2 percent (0.19 percent) of
Congress.
Two Representatives and no Senators belonged to the
American Indian and Alaska Native racial category. Both were
enrolled members of American Indian tribes. They accounted for
0.5 percent of the House and 0.4 percent of Congress.
One Representative and no Senators reported being of two
races. This Member, who was black or African American and
Asian, accounted for 0.2 percent of the House and just under
0.2 percent of Congress.
As of January 2013, the House had 30 Hispanics, and the
Senate had 3. The House number included one Delegate, who also
was a Pacific Islander in the Native Hawaiian and other Pacific
Islander racial category, and the Puerto Rican Resident
Commissioner. The 30 Hispanic Members constituted 6.8 percent
of the House. Hispanics made up 3.0 percent of the Senate and
6.1 percent of Congress. Minus the single Delegate and the
Resident Commissioner, 28 Hispanics accounted for 6.4 percent
of the House; they plus the 3 Senators made up 5.8 percent of
Congress.
Educational Attainment
Educational attainment data for the U.S. population aged 25
years and older (hereafter, the U.S. adult population) from the
2012 ACS \13\ provide the most recent estimates available for
comparison with Members' educational levels in January
2013.\14\ The data show that Members generally had greater
educational attainment than the U.S. adult population and,
thus, could be expected to have achieved higher occupational
levels.
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\13\ U.S. Bureau of the Census, American FactFinder, ``2012
American Community Survey 1-Year Estimates, Educational Attainment,''
table S1501, at http://factfinder2.census.gov/rest/dnldController/
deliver?_ts=426614212350.
\14\ The educational and occupational data for Members are from CRS
Report R42964, Membership of the 113th Congress: A Profile, by Jennifer
E. Manning; and CQ Roll Call Member Profiles, on the CQ.com
subscription database, at http://www.cq.com/members/home.do.
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In 2012, bachelor's degrees were the highest level of
education attained by 18.2 percent of the U.S. adult
population. Another 10.9 percent had gone on to earn graduate
or professional degrees, for a total of 29.1 percent with at
least bachelor's degrees. In contrast, almost all Members of
the newly seated 113th Congress (93.0 percent of those in the
House and 99.0 percent of Senators) held bachelor's degrees;
about two-thirds of House Members (296, or 67.1 percent) and
almost three-fourths of Senators (74, or 74.0 percent) had
graduate or professional educations beyond the bachelor's
level.
Master's degrees were the highest degrees earned by 85 House
Members (19.3 percent of the House) and 14 Senators (14.0
percent of the Senate).
Twenty of those in the House (4.5 percent), but no Senators,
had doctoral degrees.
Well over one-third of House Members (169, or 38.3 percent)
and more than one-half of Senators (57, or 57.0 percent) had
law degrees.
The 113th Congress included 22 House Members (5.0 percent of
the House) and 3 Senators (3.0 percent of the Senate) with
medical degrees.
Associate's degrees were the highest degrees earned by 8.0
percent of the U.S. adult population, compared with seven House
Members (1.6 percent of the House) and no Senators. In
addition, one House Member (0.2 percent of the House) was
licensed as a practical nurse.
Whereas 28.0 percent of the U.S. adult population had ended
their formal educations with high school diplomas, 21 House
Members (4.8 percent of the House) and 1 Senator (1.0 percent
of the Senate) did not have postsecondary educations.
Occupation
In 2012, according to estimates for that year from the
ACS,\15\ 40.2 percent of full-time, year-round U.S. civilian
workers at least 16 years old (hereafter, U.S. workers) were in
the broad occupational category of management, business,
science, and arts, which encompasses generally higher level
occupations than other categories; 14.1 percent were in service
occupations; 23.4 percent did sales and office work; 9.4
percent were in natural resources, construction, and
maintenance occupations; and 12.9 percent were in production,
transportation, and material moving occupations.
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\15\ U.S. Bureau of the Census, American FactFinder, ``2012
American Community Survey 1-Year Estimates,'' table S2402, at http://
factfinder2.census.gov/rest/dnldController/deliver?_ts= 426784298875.
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These categories can be broken down to allow somewhat more
specific, though limited, comparisons between the occupations
of U.S. workers and those of Members before being seated in the
113th Congress. Whereas the ACS estimates refer to occupations
as of 2012 and report only one occupation per worker, a given
Member might have noted more than one prior occupation or an
occupation that was not the most recent one preceding his or
her service in the 113th Congress.\16\ The numbers and
percentages of Members in different occupations, therefore,
should be read with the understanding that some multiple
counting has occurred and that the data pertain to various past
years.
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\16\ CRS Report R42964, Membership of the 113th Congress: A
Profile, by Jennifer E. Manning, p. 3.
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As was consistent with their educational attainment (see
``Educational Attainment'' above), Members of the incoming
113th Congress tended to have had higher level past occupations
than U.S. workers generally had. With relatively few
exceptions, the prior occupations that Members reported--and
all four of their most frequently reported occupations,
identified in the bulleted list below--correspond to
subcategories under the largest ACS category of management,
business, science, and arts occupations. Specifically:
226 Members, 184 House Members (41.7 percent of the House)
and 42 Senators (42.0 percent of the Senate), reported
occupations in public service or politics;
214 Members, 187 House Members (42.4 percent of the House)
and 27 Senators (27.0 percent of the Senate), noted business
occupations;
211 Members, 156 House Members (35.4 percent of the House)
and 55 Senators (55.0 percent of the Senate), reported law; and
92 Members, 77 House Members (17.5 percent of the House) and
15 Senators (15.0 percent of the Senate), cited education.
The closest comparisons that can be made with U.S. workers
in ACS occupational subcategories of management, business,
science, and arts show 1.8 percent in community and social
services occupations; 5.6 percent in business and financial
operations occupations; 1.4 percent in legal occupations; and
5.1 percent in education, training, and library occupations--
all lower than the proportions reported for Members in similar
positions.
As for Members' occupations outside the management,
business, science, and arts category:
31 Members, 26 House Members (5.9 percent of the House) and
5 Senators (5.0 percent of the Senate), reported agricultural
occupations;
21 Members, 17 House Members (3.9 percent of the House) and
4 Senators (4.0 percent of the Senate), reported labor or blue
collar occupations;
21 Members, 16 House Members (3.6 percent of the House) and
5 Senators (5.0 percent of the Senate), noted homemaker or
domestic occupations;
15 Members, 14 House Members (3.2 percent of the House) and
1 Senator (1.0 percent of the Senate), reported secretarial or
clerical work;
9 Members, 8 House Members (1.8 percent of the House) and 1
Senator (1.0 percent of the Senate), cited military
occupations; and
5 Members, all in the House (1.1 percent of the House),
reported law enforcement work.
Insofar as the data allow comparisons between Members and
U.S. workers, they suggest that U.S. workers were more likely
to have been in certain roughly similar occupations outside the
management, business, science, and arts category and less
likely to have been in certain others. In particular, U.S.
workers were less concentrated in farming, fishing, and
forestry occupations than Members were in agriculture. In one
occupation, law enforcement, House Members and U.S. workers
were similarly represented. Of U.S. workers:
0.6 percent had farming, fishing, and forestry occupations;
21.7 percent had construction and extraction occupations;
installation, maintenance, and repair occupations; or
production, transportation, and material moving occupations
(the closest approximation to labor or blue collar work);
2.5 percent were in personal care and service occupations (a
possible substitute for domestic work; the ACS estimates do not
include homemaking because it is not paid employment);
13.5 percent held office and administrative support
positions; and
1.3 percent were law enforcement workers, including
supervisors.
The table from which the above percentages were computed
does not include the military. Another ACS table, however,
shows that, of civilians aged 18 years and older, 8.9 percent
had served on active duty in the military at some past time
\17\ (see the discussion of ``Military Service'').
---------------------------------------------------------------------------
\17\ U.S. Bureau of the Census, American FactFinder, ``2012
American Community Survey 1-Year Estimates, Veteran Status,'' table
S2101, at http://factfinder2.census.gov/rest/dnld Controller/
deliver?_ts=427395255958.
---------------------------------------------------------------------------
Religion
The Pew Forum on Religion and Public Life has observed that
``changes in the religious makeup of Congress during the last
half-century mirror broader changes in American society.
Congress, like the nation as a whole, has become much less
Protestant and more religiously diverse.'' \18\ One notable
difference between Congress and the U.S. adult population,
however, is that almost every Member declares a religious
affiliation. In 2012, 20.0 percent of U.S. adults reported
being unaffiliated; the proportion for Members of the incoming
113th Congress was 0.2 percent.\19\
---------------------------------------------------------------------------
\18\ The Pew Research Center's Forum on Religion and Public Life,
``Faith on the Hill: the Religious Composition of the 113th Congress,''
at http://www.pewforum.org/2012/11/16/faith-on-the-hill-the-religious-
composition-of-the-113th-congress/, p. 9.
\19\ Ibid., pp. 2-3. Data for the 113th Congress, reflecting the
533 Representatives and Senators sworn in on January 3, 2013, were
collected by CQ Roll Call and the Pew Forum. Survey data on U.S. adults
were collected from January to August 2012 by the Pew Research Center
for the People & the Press.
---------------------------------------------------------------------------
Below is a breakdown of U.S. adults in 2012 and Members in
January 2013 by religious denomination. It indicates that just
under one-half of U.S. adults, but a slight majority of
Members, were Protestant. Members also were somewhat more
likely to be Catholic, Jewish, or--in the Senate--Mormon. About
1.0 percent or fewer of U.S. adults and Members were Orthodox
Christian, Buddhist, Muslim, Hindu, or Unitarian Universalist.
Protestant: 48.0 percent of U.S. adults and 56.1 percent of
Congress (57.0 percent of Representatives and 52.0 percent of
Senators)
Catholic: 22.0 percent and 30.6 percent (31.4 percent of
Representatives and 27.0 percent of Senators)
Jewish: 2.0 percent and 6.2 percent (5.1 percent of
Representatives and 11.0 percent of Senators)
Mormon: 2.0 percent and 2.8 percent (1.8 percent of
Representatives and 7.0 percent of Senators)
Orthodox Christian: 1.0 percent and 0.9 percent (1.2 percent
of Representatives and no Senators)
Buddhist: 1.0 percent and 0.6 percent (0.5 percent of
Representatives and 1.0 percent of Senators)
Muslim: 1.0 percent and 0.4 percent (0.5 percent of
Representatives and no Senators)
Hindu: <1.0 percent and 0.2 percent (0.2 percent of
Representatives and no Senators)
Unitarian Universalist: <1.0 percent and 0.2 percent (0.2
percent of Representatives and no Senators)
Baptists, the largest Protestant group, accounted for 17.0
percent of U.S. adults in 2007 \20\ and 13.7 percent of Members
in January 2013. Disaggregation by Chamber, however, shows that
14.8 percent of Representatives, but 9.0 percent of Senators,
were Baptist; Senators, as indicated below, were more likely to
be Presbyterian.
---------------------------------------------------------------------------
\20\ The most recent available data on U.S. adults by groups within
the Protestant denomination are from the Pew Forum's ``U.S. Religious
Landscape Survey,'' conducted in 2007. The survey report was published
in 2008, at http://religions.pewforum.org/pdf/report-religious-
landscape-study-full.pdf.
---------------------------------------------------------------------------
Other Protestant affiliations reported by more than 1.0
percent of U.S. adults and Members were:
Methodist: 6.0 percent of U.S. adults and 8.6 percent of
Members (8.8 percent of Representatives and 8.0 percent of
Senators);
Presbyterian: 3.0 percent and 8.1 percent (6.5 percent of
Representatives and 15.0 percent of Senators);
Anglican/Episcopal: 2.0 percent and 7.3 percent (8.1 percent
of Representatives and 4.0 percent of Senators); and
Lutheran: 5.0 percent and 4.3 percent (4.2 percent of
Representatives and 5.0 percent of Senators).
Pentecostal Protestants accounted for 4.0 percent of U.S.
adults--more than Presbyterians or Anglicans/Episcopalians--but
only 0.2 percent of Members (0.2 percent of Representatives and
no Senators).
Military Service
According to a previously cited 2012 ACS estimate, 8.9
percent of U.S. civilians aged 18 years and older were
veterans; that is, they had served on active duty in the
military but were no longer in this status when they filled out
the survey.\21\ The ACS definition of ``veterans,'' besides
excluding current active-duty service members, also excludes
those who served in the National Guard or Reserves but were
never on active duty. The ACS estimate of veterans, in other
words, is not an estimate of all those in the U.S. population
who have ever served in the military.
---------------------------------------------------------------------------
\21\ U.S. Bureau of the Census, American FactFinder, ``2012
American Community Survey 1-Year Estimates, Veteran Status,'' table
S2101, at http://factfinder2.census.gov/rest/dnld Controller/
deliver?_ts=427395255958.
---------------------------------------------------------------------------
Veterans' periods of service included:
World War II, for 7.5 percent of veterans;
the Korean war era, 10.9 percent;
the Vietnam war era, 34.9 percent;
the Gulf war period, August 1990 to August 2001, 17.1
percent; and
the Gulf war period, September 2001 or later, 12.9 percent.
The Census Bureau pointed out that these categories ``are
not necessarily mutually exclusive. Veterans may have served in
more than one period.'' \22\
---------------------------------------------------------------------------
\22\ Ibid.
---------------------------------------------------------------------------
When the 113th Congress was seated, 108 (20.0 percent) of
its Members had been in the military.\23\ Although this
proportion is more than double the ACS-estimated percentage of
veterans in the U.S. adult civilian population in 2012, the ACS
estimate, as explained above, does not cover all those in that
year who had past or ongoing military experience.
---------------------------------------------------------------------------
\23\ The military service data for Members are from CRS Report
R42964, Membership of the 113th Congress: A Profile, by Jennifer E.
Manning; CQ Roll Call, ``113th Congress: House Military Veterans,'' at
http://www.cq.com/members/factfilereport.do?report=mff-house-veterans;
and CQ Roll Call, ``113th Congress: Senate Military Veterans,'' at
http://www.cq.com/members/factfilereport.do?report=mff-senate-veterans.
---------------------------------------------------------------------------
The House included 90 Members who had been, or still were,
in the military (20.4 percent of the House), and the Senate had
18 (18.0 percent of the Senate). Some of them, like some
veterans estimated by the ACS, served during more than one
period.
The periods for House Members' military service spanned:
World War II, for 2 Members (2.2 percent of House service
members);
the Korean war era, 2 (5.6 percent);
the Vietnam war era, 41 (45.6 percent);
the first Gulf war, 1990 to 1991, 22 (24.4 percent); and
the second Gulf war, beginning after September 11, 2001, 29
(32.2 percent).
Senators' periods of military service included:
World War II, for 1 Senator \24\ (5.6 percent of Senate
service members);
---------------------------------------------------------------------------
\24\ The Senator died on June 3, 2013.
---------------------------------------------------------------------------
the Korean war era, none;
the Vietnam war era, 11 (61.1 percent);
the first Gulf war, 1990-1991, 4 (22.2 percent); and
the second Gulf war, beginning after September 11, 2001, 3
(16.7 percent).
Members' Sociodemographic Characteristics over Time \25\
---------------------------------------------------------------------------
\25\ This section and the following two sections were written by
Ida A. Brudnick.
---------------------------------------------------------------------------
In the following section, CRS Report R42365,
Representatives and Senators: Trends in Member Characteristics
Since 1945,\26\ is the primary source for analysis. That report
reflected the composition of the 113th Congress when it was
seated on January 3, 2013. Four hundred thirty-three
Representatives and 100 Senators were sworn in that day, and
these numbers were used to calculate the sociodemographic
characteristics appearing in Representatives and Senators.
---------------------------------------------------------------------------
\26\ CRS Report R42365, Representatives and Senators: Trends in
Member Characteristics Since 1945, coordinated by R. Eric Petersen.
---------------------------------------------------------------------------
The preceding section illustrates some differences between
Members of Congress and the U.S. population overall. A look at
earlier Congresses demonstrates that this is not a new
phenomenon. Furthermore, Congress has become more diverse over
time across many demographic characteristics, especially in
recent decades.
Until 1917, for example, no women served in Congress (and,
of course, none could vote in Federal elections until 1920).
The percentage of women in the House doubled from approximately
5 percent as late as the 99th Congress (1985-1987) to more than
10 percent in the 103d Congress (1993-1995) before reaching
nearly 15 percent at the beginning of the 109th Congress (2005-
2007) and 17.9 percent at the beginning of the 113th Congress.
Women did not hold 2 percent of the seats in the Senate
until the 87th Congress, and they did not surpass this number
until the beginning of the 103d Congress, when their percentage
tripled to 6 percent. The number of female Senators has
remained steady or grown ever since, and Senate membership in
the 113th Congress is 20 percent female. The 113th Congress has
the highest number of female Representatives and Senators ever
to serve.\27\
---------------------------------------------------------------------------
\27\ In addition to CRS Report R42365, Representatives and
Senators: Trends in Member Characteristics Since 1945, coordinated by
R. Eric Petersen, see CRS Report R43244, Women in the United States
Congress: Historical Overview, Tables, and Discussion, by Jennifer E.
Manning, Colleen J. Shogan, and Ida A. Brudnick.
---------------------------------------------------------------------------
Similarly, although the racial and ethnic makeup of
Congress remains less diverse than that of the general public,
recent Congresses have shown some changes. The House of
Representatives was more than 95 percent white until the 93d
Congress and more than 90 percent white until the 103d
Congress. Whites make up 82.2 percent of the House in the 113th
Congress,\28\ a record low.
---------------------------------------------------------------------------
\28\ This computation is based on a total of 433 Representatives
sworn in on January 3, 2013.
---------------------------------------------------------------------------
The second-largest group in the 113th Congress is African
Americans. No African American served until the 41st Congress,
and no African Americans served from the 57th through the 71st
Congresses. After accounting for just under 0.5 percent of the
House at the beginning of the 79th Congress, African American
Members increased to a high of 9.7 percent at the outset of the
112th Congress, and then decreased slightly to 9.0 percent at
the outset of the 113th Congress. No more than 1 percent of
Senators at the beginning of any Congress identified as African
American. Many of the African American individuals who have
served in Congress have done so in the modern era; according to
the Clerk of the House and the House Historian's offices,
``Forty-four of the 140 African Americans who have served in
Congress [31 percent] are current Members.'' \29\
---------------------------------------------------------------------------
\29\ U.S. House of Representatives, ``History, Art, & Archives,''
at http://history.house.gov/ Exhibitions-and-Publications/BAIC/
Historical-Data/Historical-Data--Nav.
---------------------------------------------------------------------------
The percentage of Representatives who have identified as
Hispanic has grown from 0.2 percent at the beginning of the
79th Congress to a record high of 6.7 percent in the 113th
Congress.\30\ In the same period, the percentage of Senators
identifying as Hispanic has ranged from a low of 0 percent
(95th-108th Congresses) to a high of 3 percent at the outset of
the 110th, 111th, and 113th Congresses. As with African
Americans, many of the Hispanic Members have served more
recently. According to one history, ``Fifty-four of the 91
Hispanic Americans who served in Congress through 2012--nearly
60 percent--were seated after 1977.'' \31\ This study also
found more recent geographic diversity among this group,
stating ``in the 1970s, for the first time, Hispanic Members
were elected from states outside the Southwest, including New
York, New Jersey, and Illinois.'' \32\
---------------------------------------------------------------------------
\30\ Includes a Senator of Portuguese heritage. As above, this
computation is based on a total of 433 Representatives sworn in on
January 3, 2013.
\31\ U.S. Congress, House Committee on House Administration,
Hispanic Americans in Congress, prepared by the Office of the Historian
and the Office of the Clerk, 113th Cong., 2d sess. (Washington, DC:
GPO, 2014), p. 7
\32\ Ibid.
---------------------------------------------------------------------------
Some historical differences described in this report are
more persistent. For example, studies have found that Congress
has always had many lawyers. One study found that of the 65
Representatives in the First Congress, 24 were lawyers.\33\
Another found that:
---------------------------------------------------------------------------
\33\ George B. Galloway, ``Precedents Established in the First
Congress,'' The Western Political Quarterly, vol. 11, no. 3 (September
1958), pp. 454-468.
(d)uring the first decade of the 19th century, lawyers
accounted for slightly more than 40% of the individuals
entering House service. During the 1840s and 1850s, the
comparable group exceeded 65 percent. The proportion of lawyers
entering Congress decreased very gradually thereafter, with a
noticeable dip occurring by the 1930s. By the 1950s the
percentage of lawyers among those entering the House was only
some 7 percentage points greater than the average found in the
first three decades of the nation's history.\34\
---------------------------------------------------------------------------
\34\ Allan G. Bogue, Jerome M. Clubb, Carroll R. McKibbin, and
Santa A. Traugott, ``Members of the House of Representatives and the
Process of Modernization,'' Journal of American History, vol. 53
(September 1976), p. 285. See also Donald R. Matthews, ``Legislative
Recruitment and Legislative Careers,'' Legislative Studies Quarterly,
vol. 9, no. 4 (November 1984), pp. 547-585.
At the beginning of the 113th Congress, 38.3 percent of the
House and 57 percent of Senators had law degrees.\35\
---------------------------------------------------------------------------
\35\ Members with law degrees may not have listed the practice of
law as an occupation, which was analyzed above (see ``Occupation'').
---------------------------------------------------------------------------
Educational attainment has increased for the Nation over
time, and the degrees attained by Members have also increased
and continue to exceed those of the overall population. This
difference is particularly prevalent in the number of Members
holding graduate degrees.
Members' Sociodemographic Characteristics: Challenges in Compilation
and Choosing the Right Comparison
As this report demonstrates, the sociodemographic
characteristics of Members of Congress vary from those of the
U.S. population in many ways. The scope of these differences,
however, is difficult to measure due to methodological
challenges, and the significance is difficult to assess for
more theoretical reasons. Students of Congress have examined
these differences, including whether they are a new or
persistent phenomenon and what they mean for the
representativeness of government.
As discussed in CRS Report R42365, Representatives and
Senators: Trends in Member Characteristics Since 1945, numerous
methodological challenges complicate any analysis of Members'
sociodemographic characteristics. The disclosure, for example,
of details of a Member's race, education, previous occupation,
religion, or other characteristics has been voluntary, and no
official, authoritative source has collected Member
characteristics data in a consistent manner over time. Direct
comparisons between Members and the population at large may
also be difficult to make due to a lack of comparable data from
the U.S. Census Bureau, as evident from the careful
explanations given to comparisons in the preceding sections.
For example, although a Member may be able to list multiple
responses for a particular characteristic--like occupation--in
an official biography, the Census Bureau may report only one
for respondents to the agency's questionnaires.
Furthermore, Members are often compared with the entire
population, but they are elected by a smaller group of voters.
Because some researchers suggest that policy outcomes represent
the preferences of the median voter, some argue that
comparisons between the median Member of Congress and the
median voter may be more useful than comparisons with the
population overall.\36\ Additionally, differences between
Members and the general population may occur for logical or
unavoidable reasons--for example, Members must reach the
required age set forth in the Constitution, but the population
at large contains Americans of all ages. Comparisons limited to
voters, however, also present methodological challenges.
---------------------------------------------------------------------------
\36\ See, for example, Anthony Downs, ``An Economic Theory of
Political Action in a Democracy,'' Journal of Political Economy, vol.
65 (1957), pp. 135-150; and Keith Krehbiel, ``Legislative
Organization,'' Journal of Economic Perspectives, vol. 18 (2004), pp.
113-128.
---------------------------------------------------------------------------
Assessing the Significance of Differences in Sociodemographic
Characteristics Between Congress and the U.S. Population
Scholars of Congress have long taken an interest in the
backgrounds of Members of Congress. Much of their research has
attempted to measure the impact of gender, race, religion, and
veteran status. Many of these studies contrast descriptive
representation (i.e., numerical representation) and substantive
representation (i.e., representation of interests) \37\ and
seek to determine whether descriptive representation increases
or, by concentrating support, decreases substantive
representation.\38\ Students of Congress have also sought to
determine any link between sociodemographic characteristics and
political behavior and policy outcomes. For example, they have
examined whether these characteristics influence:
---------------------------------------------------------------------------
\37\ See, for example, Hanna Pitkin, The Concept of Representation
(Berkeley, CA: University of California Press, 1967).
\38\ See, for example, David Lublin, The Paradox of Representation:
Racial Gerrymandering and Minority Interests in Congress (Princeton,
NJ: Princeton University Press, 1997).finagled footnote
39 deg.
\39\ See, for example, for women: Kathryn Pearson and Logan Dancey,
``Elevating Women's Voices in Congress: Speech Participation in the
House of Representatives,'' Political Research Quarterly, vol. 64
(December 2011), pp. 910-923; and Kathryn Pearson and Logan Dancey,
``Speaking for the Underrepresented in the House of Representatives:
Voicing Women's Interests in a Partisan Era,'' Politics & Gender, vol.
7 (December 2011), pp. 493-519.
See, for example, for African Americans: Charles Tien and Dena
Levy, ``The Influence of African Americans on Congress: A Content
Analysis of the Civil Rights Debates,'' Du Bois Review, vol. 5, no. 1
(2008), pp. 115-135; and Katrina L. Gamble, ``Black Political
Representation: An Examination of Legislative Activity within U.S.
House Committees,'' Legislative Studies Quarterly, vol. 32, no. 3
(August 2007), pp. 421-447.
See, for example, for social status and wealth: Nicholas Carnes,
``Does the Numerical Underrepresentation of the Working Class in
Congress Matter?'' Legislative Studies Quarterly, vol. 37, issue 1
(February 2012), pp. 5-34.
---------------------------------------------------------------------------
official actions like rollcall voting, the sponsorship of
amendments, committee participation, bill introduction and
cosponsorship, and speeches; \39\
support for specific policies, such as whether veteran
status influences views about when and how to use military
force, or whether sociodemographic characteristics influence
international as well as domestic policy; \40\
---------------------------------------------------------------------------
\40\ See, for example, Allan G. Bogue, Jerome M. Clubb, Carroll R.
McKibbin, and Santa A. Traugott, ``Members of the House of
Representatives and the Process of Modernization,'' Journal of American
History, vol. 53 (September 1976), p. 285; William T. Bianco, ``Last
Post for `The Greatest Generation': The Policy Implications of the
Decline of Military Experience in the U.S. Congress,'' Legislative
Studies Quarterly, vol. 30, no. 1 (February 2005), pp. 85-102;
Christopher Gelpi and Peter D. Feaver, ``Speak Softly and Carry a Big
Stick? Veterans in the Political Elite and the American Use of Force,''
American Political Science Review, vol. 96 (2002), pp. 779-793; and
Joseph Uscinski, Michael S. Rocca, Gabriel R. Sanchez, and Marina
Brenden, ``Congress and Foreign Policy: Congressional Action on the
Darfur Genocide,'' PS: Political Science & Politics, vol. 42, no. 3
(July 2009), pp. 489-496.
---------------------------------------------------------------------------
effectiveness in achieving Members' legislative agenda,
including the distribution of Federal funding or the passage of
bills; \41\
---------------------------------------------------------------------------
\41\ See, for example, Christian R. Grose, Congress in Black and
White: Race and Representation in Washington and At Home (Cambridge,
United Kingdom, and New York: Cambridge University Press, 2011).
---------------------------------------------------------------------------
Members' understanding of their constituencies and whom they
represent, and whether they represent only their geographic
constituents or also see themselves as representatives of their
demographic group; \42\
---------------------------------------------------------------------------
\42\ See, for example, Richard F. Fenno, Jr., Going Home: Black
Representatives and Their Constituencies (Chicago: University of
Chicago Press, 2003); James B. Johnson and Philip E. Secret, ``Focus
and Style Representational Roles of Congressional Black and Hispanic
Caucus Members,'' Journal of Black Studies, vol. 26, no. 3 (January
1996), pp. 245-273; and Jessica C. Gerrity, Tracy Osborn, and Jeannette
Morehouse Mendez, ``Women and Representation: A Different View of the
District?'' Politics & Gender, vol. 3 (June 2007), pp. 179-200.
---------------------------------------------------------------------------
relationships among Members, including how they build
support for policy positions, relate to colleagues, build
coalitions, and decide whether to join congressional caucuses;
\43\
---------------------------------------------------------------------------
\43\ See, for example, Jason P. Casellas, ``Coalitions in the
House? The Election of Minorities to State Legislatures and Congress,''
Political Research Quarterly, vol. 62, no. 1 (March 2009), pp. 120-131;
Tracy L. Osborn, How Women Represent Women: Political Parties, Gender,
and Representation in the State Legislatures (New York: Oxford
University Press, 2012); and James M. McCormick and Neil J. Mitchell,
``Commitments, Transnational Interests, and Congress: Who Joins the
Congressional Human Rights Caucus?'' Political Research Quarterly, vol.
60, no. 4 (December 2007), pp. 579-592.
---------------------------------------------------------------------------
attitudes of constituents regarding representation,
constituency service expectations, approval of representative
institutions, and turnout; \44\
---------------------------------------------------------------------------
\44\ See, for example, John D. Griffin and Michael Keane,
``Descriptive Representation and the Composition of African American
Turnout,'' American Journal of Political Science, vol. 50, no. 4
(October 2006), pp. 998-1012; and Thomas L. Brunell, Christopher J.
Anderson, and Rachel K. Cremona, ``Descriptive Representation, District
Demography, and Attitudes toward Congress among African Americans,''
Legislative Studies Quarterly, vol. 33, no. 2 (May 2008), pp. 223-244.
---------------------------------------------------------------------------
recruitment, including who runs for office and barriers to
entry; \45\ and
---------------------------------------------------------------------------
\45\ See, for example, Samuel Kernell, ``Toward Understanding 19th
Century Congressional Careers: Ambition, Competition, and Rotation,''
American Journal of Political Science, vol. 21, no. 4 (November 1977),
pp. 669-693; Robert G. Brookshire and Dean F. Duncan III,
``Congressional Career Patterns and Party Systems,'' Legislative
Studies Quarterly, vol. 8, no. 1 (February 1983), pp. 65-78; and Donald
R. Matthews, ``Legislative Recruitment and Legislative Careers,''
Legislative Studies Quarterly, vol. 9, no. 4 (November 1984), pp. 547-
585.
---------------------------------------------------------------------------
career patterns, including tenure and decisions to run for
reelection or seek committee assignments \46\ and leadership
roles.
---------------------------------------------------------------------------
\46\ See, for example, Richard F. Fenno, Jr., Congressmen in
Committees (Boston: Little, Brown, 1973); Scott A. Frisch and Sean Q.
Kelly, Committee Assignment Politics in the U.S. House of
Representatives (Norman, OK: University of Oklahoma Press, 2006); and
Kerry Haynie, ``African Americans and the new politics of inclusion: A
representational dilemma?'' in Lawrence C. Dodd and Bruce I.
Oppenheimer, eds., Congress Reconsidered, 8th ed. (Washington, DC: CQ
Press, 2005), pp. 395-409.
---------------------------------------------------------------------------
Additional research in many of these areas is needed to
assess more fully the impact of Members' sociodemographic
characteristics and their relationship to the representation of
interests. Members may have multiple influences or goals for
any particular action. \47\ Additionally, with limited Members
belonging to certain groups and the need to control for other
factors, such as majority and seniority status or regional or
district characteristics, isolating the importance of Members'
sociodemographic characteristics remains a challenge.
---------------------------------------------------------------------------
\47\ Richard F. Fenno, Jr., Congressmen in Committees (Boston:
Little, Brown, 1973).
---------------------------------------------------------------------------
Conclusion
The extent to which Members of the 113th Congress can be
compared with the contemporary U.S. population is somewhat
restricted by data limitations. Nevertheless, certain
comparisons are possible.
These comparisons indicate that Members have a higher
median age than the larger population and are more likely to be
males; to be non-Hispanic whites; and to have higher
educational attainment and occupational levels (which, for
Members, refer to their prior occupations). Current Members
also are more likely to report religious affiliations,
particularly Protestant, and to report having served in the
military. The data on age, educational attainment, and
occupational levels indicate that Members have the life
experiences and qualifications to be expected of those chosen
for some of the most demanding national offices.
A look at Members over time shows that they have become
more diverse in race, ethnicity, and religion. The 113th
Congress also includes a record-high number of women.
What Members' sociodemographic characteristics mean for
their political behavior and policy outcomes remains a matter
for further scholarly investigation.
Congressional Staffing: The Continuity of Change and Reform
Ida A. Brudnick
Specialist on the Congress
----------
Over the last century, the professional staff support
available to assist Members, collectively or
individually, in navigating their roles and
responsibilities has transformed to respond to the
changing world. The support structure for Congress has
evolved alongside broader changes within Congress and
the United States. Numerous scholars have examined
congressional staffing and support, attempting to
assess its impact on the legislative branch and the
political process. While much of the seminal literature
on congressional staffing is decades old, many of the
principal questions remain the same. Reform efforts
have had a substantial impact on the operation of
offices and agencies established to support Members,
while also highlighting enduring, intractable
challenges related to staffing and information needs.
The exploration of these previous research and reform
efforts demonstrate continuity in concerns related to
the operation and internal workings of Congress. They
also demonstrate that efforts to ``fix'' the internal
workings of Congress are not new. Rather, each reform
effort is a continuation of the search for the optimal
resources to ensure an independent, accountable, and
effective legislative branch.
Introduction
Over the past century, the professional staff support
available to assist Members, collectively or individually, in
navigating their roles and responsibilities has been
transformed to respond to the changing world. This assistance
includes personal office staff, committees, and officers and
support agencies that perform legislative, administrative,
financial, historical, ceremonial, and security functions. Over
time, Congress has worked to determine the amount and type of
assistance necessary for a well-informed and well-administered
Congress, as well as rules and laws for its regulation.
Congress has also regularly expressed interest in developing
its own independent sources of information to help combat the
informational advantage of the executive branch.
The operation of the congressional support structure is
particularly significant because individual Members of Congress
are political and electoral entrepreneurs. Each Member obtains
his or her seat through election in a single-Member district,
rather than through a list in a proportional representation,
parliamentary-style system. The American electoral system
allows each Member freedom to represent constituents in the
manner he or she judges best. This representation often
requires constituency services, while it also encourages
Members to acquire expertise on a wide variety of issues. Work
on bills, committees, and speeches may be made in conjunction
with the party apparatus, but each Member is also an
entrepreneur in the policy, constituency, and press arenas.
Members may develop their own bills, amendments, questions for
witnesses at hearings, floor speeches, and media operations.
Since each Member must chart his or her own congressional
career, access to information and support as well as an ability
to use it effectively is a significant factor in shaping a
Member's impact. Since staffing and other resources are not
without limit, determinations made regarding the distribution
of resources may affect the distribution of influence.
This report first places changes to congressional support
in context with the changing national political and economic
arena. It then introduces the academic literature on the
influence of congressional staff and the role of policy
analysis, presenting the major areas of inquiry. Finally, it
provides an overview of previous reform efforts and
illustrative examples of changes to congressional support and
the role of policy analysis, as well as a brief discussion of
recent data.
The exploration of previous research and of reform efforts
demonstrates the continuity in concerns related to the
operation and internal workings of Congress. It also
demonstrates that efforts to ``fix'' the internal workings of
Congress are not new. Rather, each reform effort is a
continuation of the search for the optimal resources to ensure
an independent, accountable, and effective legislative branch.
Support in a Changing National Political and Economic Arena
A continuous transformation in the breadth of issues to
which Congress must respond, conditions in the Nation, and the
sources of information have spurred changes to Congress'
internal structure. Efforts to reform the internal workings of
Congress have often coincided with or followed a crisis or
major national event--for example, World War II or Watergate--
or were intertwined with social and policy changes--for
example, the civil rights movement. Other times, major changes
have been made in response to perceived deficiencies or
dysfunction in Congress or in an effort to challenge the
executive branch. Members, for example, may search for ways to
exert influence in a policy area or make their jobs easier, or
they may wish to respond to public criticism or concern.
Sometimes, targeted reforms have affected or expanded one type
of support--for example, for Members or committees--and
sometimes changes have been the result of broader or more
comprehensive efforts.
One hundred years ago, the United States was still debating
its place in the world, while today it is firmly established as
a superpower. Questions related to international commitments,
debated in the era surrounding World War I, have given way to
wars in Iraq and Afghanistan, multiple international treaties
and organizations, and trade issues. Aviation was then in its
infancy, and technology supporting computers and the Internet
was decades away. Transportation advances have made it possible
for Members to return to their States or districts each week,
rather than only at long recesses or at the end of a session.
This has changed expectations related to contact with
constituents and altered calculations related to relocating a
Member's family. Timely news can be obtained from across the
Nation and abroad, and the instant dissemination of information
made possible by the 24-hour news cycle and social media has
also changed how Members receive their news and communicate
with their constituents.
The Nation itself is far larger than it was only 100 years
ago. According to the 1910 census, the Nation had 92 million
residents. The 2010 census reported a national population of
over 308 million, an increase of 235 percent. Congress,
however, has not grown proportionally. The House, with its 435
voting Members, has maintained the same size as it did after
the 1910 census.\1\ The Senate, to accommodate new States
entering the Union, has grown slightly, from 92 seats in 1910
(61st Congress) to 100 seats by 1959 (86th Congress).
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\1\ The size was established by P.L. 5, 37 Stat. 13, ch. 5, August
3, 1911, and the Permanent Apportionment Act, P.L. 13, 46 Stat. 21, ch.
28, June 18, 1929. For a discussion of the incorporation of
Representatives following the admission of States, and a list of
apportionment by State, see http://history.house.gov/Institution/
Apportionment/Apportionment/.
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The economy has grown far larger and more complex since the
Great Depression. Since 1929, according to the Bureau of
Economic Analysis, the Nation's real GDP has grown almost 1,400
percent. Since 1940, government receipts have grown more than
2,600 percent and outlays by more than 2,200 percent in
constant dollars.
Congress must also oversee a much larger executive branch
than it did in the pre-World War II period. According to the
Office of Personnel Management (OPM), civilian executive branch
employment grew from 443,000 to 1,374,000 from 1940 until 2012,
an increase of 210 percent. In comparison, House and Senate
staff grew from approximately 5,600 employees in 1954 to
approximately 17,000.\2\ In recent years, the legislative
branch has employed approximately 30,000 employees, making it
approximately 2 percent the size of the civilian executive
branch.
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\2\ CRS Report R40056, Legislative Branch Staffing, 1954-2007, by
R. Eric Petersen (archived; available from author).
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While difficulties abound in attempting to assess
congressional workload, by at least one measure--the number of
rollcall votes--the job has changed dramatically. The number of
rollcall votes in the first session of the 113th Congress was
more than double the number in the first session of the 80th
Congress (1947) in both the House and Senate.\3\
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\3\ ``Resume of Congressional Activity,'' Congressional Record,
vol. 94, part 14 (December 31, 1948), pp. D537-D538; and ``Resume of
Congressional Activity,'' Congressional Record, daily edition, vol.
160, February 27, 2014, p. D195.
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The support structure for Congress has evolved alongside
these broader changes within Congress and the Nation.
Assessing the Impact of Congressional Staff and Support: Areas of
Research
Numerous scholars have examined congressional staffing and
support, attempting to assess its impact on the legislative
branch and the political process. While much of the seminal
literature on congressional staffing is decades old, many of
the principal questions remain the same.
Some studies have scrutinized staff influence on the
legislative process, including their accountability, autonomy,
influence, and partisanship.\4\ This research, drawing on
principal-agent theory, examines whether staff drive the
political agenda or merely respond to the direction of the
elected officials. This literature has examined the role of
staff in a representative democracy--including whether too much
power or decisionmaking has been delegated to staff. It has
examined the desirability of partisan versus nonpartisan staff
on congressional committees, as well as the role of
professional, expert staff in a partisan environment.
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\4\ See, for example, Michael J. Malbin, Unelected Representatives:
Congressional Staff and the Future of Representative Government (New
York: Basic Books Inc., 1980); Barbara S. Romzek, ``Accountability of
Congressional Staff,'' Journal of Public Administration Research and
Theory: J-PART, vol. 10, no. 2 (April 2000), pp. 413-446; George K.
Yin, ``Legislative Gridlock and Nonpartisan Staff,'' Notre Dame Law
Review, vol. 88 (2013), p. 2287; Christine DeGregorio, ``Staff
Utilization in the U.S. Congress: Committee Chairs and Senior Aides,''
Polity, vol. 28, no. 2 (winter 1995), pp. 261-275; James D. Cochrane,
``Partisan Aspects of Congressional Committee Staffing,'' The Western
Political Quarterly, vol. 17, no. 2 (June 1964), pp. 338-348; and David
E. Price, ``Professionals and `Entrepreneurs': Staff Orientations and
Policy Making on Three Senate Committees,'' The Journal of Politics,
vol. 33, no. 2 (May 1971), pp. 316-336.
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Other studies have examined:
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\5\ See, for example, Barbara S. Romzek and Jennifer A. Utter,
``Congressional Legislative Staff: Political Professionals or Clerks?''
American Journal of Political Science, vol. 41, no. 4 (October 1997),
pp. 1251-1279; Barbara S. Romzek and Jennifer A. Utter, ``Career
Dynamics of Congressional Legislative Staff: Preliminary Profile and
Research Questions,'' Journal of Public Administration Research and
Theory: J-PART, vol. 6, no. 3 (July 1996), pp. 415-442; David L. Leal
and Frederick M. Hess, ``Who Chooses Experience? Examining the Use of
Veteran Staff by House Freshmen,'' Polity, vol. 36, no. 4 (July 2004),
pp. 651-664; John R. Johannes, ``Casework as a Technique of U.S.
Congressional Oversight of the Executive,'' Legislative Studies
Quarterly, vol. 4, no. 3 (August 1979), pp. 325-351; Christine
DeGregorio, ``Professionals in the U.S. Congress: An Analysis of
Working Styles,'' Legislative Studies Quarterly, vol. 13, no. 4
(November 1988), pp. 459-476; and CRS Report RL34545, Congressional
Staff: Duties and Functions of Selected Positions, by R. Eric Petersen.
\6\ See, for example, Linda Cohen Bell and Cindy Simon Rosenthal,
``From Passive to Active Representation: The Case of Women
Congressional Staff,'' Journal of Public Administration Research and
Theory: J-PART, vol. 13, no. 1 (January 2003), pp. 65-81; Sally
Friedman and Robert T. Nakamura, ``The Representation of Women on U.S.
Senate Committee Staffs,'' Legislative Studies Quarterly, vol. 16, no.
3 (August 1991), pp. 407-427; Christian R. Grose, Maruice Mangum, and
Christopher Martin, ``Race, Political Empowerment, and Constituency
Service: Descriptive Representation and the Hiring of African-American
Congressional Staff,'' Polity, vol. 39, no. 4 (October 2007), pp. 449-
478; John Johannes, ``Women as Congressional Staffers: Does It Make a
Difference?'' Women & Politics, vol. 4, no. 2 (June 1984), pp. 69-81;
David Canon, Race, Redistricting, and Representation (Chicago:
University of Chicago Press, 1999); and Congressional Hispanic Staff
Association, ``Unrepresented: A Blueprint for Solving the Diversity
Crisis on Capitol Hill,'' February 2010.
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job duties in a Member office, career trajectories, and
turnover rates; \5\
the diversity of congressional staff, including questions of
descriptive versus substantive representation and whether the
presence of women and minorities on congressional staffs
affects policy outcomes; \6\
the size and cost of congressional staffing; \7\
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\7\ See, for example, Harrison W. Fox, Jr. and Susan Webb Hammond,
``The Growth of Congressional Staffs,'' Proceedings of the Academy of
Political Science, vol. 32, no. 1 (1975), pp. 112-124; Gladys M.
Kammerer, ``The Record of Congress in Committee Staffing,'' American
Political Science Review, vol. 45, no. 4 (December, 1951), pp. 1126-
1136; CRS Report R41366, House of Representatives and Senate Staff
Levels in Member, Committee, Leadership, and Other Offices, 1977-2010,
by R. Eric Petersen, Parker H. Reynolds, and Amber Hope Wilhelm; and
CRS Report R43557, Legislative Branch: FY2015 Appropriations, by R.
Eric Petersen and Ida A. Brudnick.
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the internal distribution of staff, including allocation
among Member, committee, and leadership offices, or between
Washington, DC, and the district or State offices; \8\
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\8\ Samuel C. Patterson, ``The Professional Staffs of Congressional
Committees,'' Administrative Science Quarterly, vol. 15, no. 1 (March
1970), pp. 22-37; and Steven H. Schiff and Steven S. Smith,
``Generational Change and the Allocation of Staff in the U.S.
Congress,'' Legislative Studies Quarterly, vol. 8, no. 3 (August 1983),
pp. 457-467.
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the impact of the legislative branch having its own sources
of information and analysis, including who provides this
information and how political actors consume it; \9\ and
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\9\ Charles O. Jones, ``Why Congress Can't Do Policy Analysis,''
Policy Studies Review Annual (1977), p. 224; Bruce Bimber,
``Information as a Factor in Congressional Politics,'' Legislative
Studies Quarterly, vol. 16, no. 4 (November 1991), pp. 585-605; and
David Whiteman, ``The Fate of Policy Analysis in Congressional Decision
Making: Three Types of Use in Committees,'' The Western Political
Quarterly, vol. 38, no. 2 (June 1985), pp. 294-311.
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broad examinations of the significance of congressional
staff.\10\
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\10\ Lindsay Rogers, ``The Staffing of Congress,'' Political
Science Quarterly, vol. 56, no. 1 (March 1941), pp. 1-22; Kenneth
Kofmehl, Professional Staffs of Congress (West Lafayette, IN: Purdue
University Press, 1962); Susan Webb Hammond, ``Legislative Staffs,''
Legislative Studies Quarterly, vol. 9, no. 2 (May 1984), pp. 271-317;
Susan Webb Hammond, ``Recent Research on Legislative Staffs,''
Legislative Studies Quarterly, vol. 21, no. 4 (November 1996), pp. 543-
576; Harrison W. Fox, Jr. and Susan Webb Hammond, Congressional Staffs:
The Invisible Force in American Lawmaking (New York: Free Press, 1977);
Michael J. Malbin, Unelected Representatives: Congressional Staff and
the Future of Representative Government (New York: Basic Books Inc.,
1980); and Steven S. Smith and Christopher J. Deering, Committees in
Congress, 3d ed. (Washington, DC: CQ Press, 1997).
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The goal of a well-informed and well-administered
legislature has long been appreciated, even if the means of
achieving it have not been agreed upon. One congressional
observer, in 1941, stated:
That the legislative branch of government should have
``modern tools'' and an ``up-to-date organization'' so that it
may ``go forward efficiently'' is . . . essential. Over the
years the work of Congress has become increasingly technical
and burdensome. The annual statute book grows in size. Sessions
are longer. More and more numerous become the administrative
agencies which seek funds and require scrutiny. Naturally,
therefore, the staff of Congress has grown larger. To its cost,
numbers, duties and potentialities little attention has as yet
been paid--even by Congress.\11\
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\11\ Lindsay Rogers, ``The Staffing of Congress,'' Political
Science Quarterly, vol. 56, no. 1 (March 1941), p. 1.
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Another early study, a decade later, echoed the sentiment:
The point had been made repeatedly by critics within and
outside the Congress that its standing committees must be
equipped with first-rate professional staffs if they are to
make intelligent legislative decisions on the increasingly
complex and technical problems presented to the legislators for
solution. Reliance upon executive branch research studies or
upon the detail of executive agency technicians to the
committees was held by many to be fraught with the danger of
injecting special pleading and biases for the increasing number
of administration-sponsored bills. For Congress to function as
a coequal partner with the executive in the legislative
process, these critics deemed it essential that Congress
empower itself to obtain its own independent staff services and
that it pay adequately for them.\12\
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\12\ Gladys M. Kammerer, ``The Record of Congress in Committee
Staffing,'' American Political Science Review, vol. 45, no. 4 (December
1951), pp. 1126-1136.
The move to better equip Congress, however, was not without
its critics. Another major study, in 1962, articulated concerns
that began to be raised about the then-increasing size and role
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of the support network:
If a little staffing is good, it does not necessarily
follow that a whole lot more is better. Too much staffing for
the right purposes contains the threat of
overinstitutionalizing the legislators and of impeding the
operations of the whole staff. And any--much less a great deal
of--staff for the wrong purposes not only interferes with the
functioning of the part of the staff engaged in desirable work
but also has adverse repercussions on the entire system of
government. Similar considerations apply to the types of staff
personnel Congress should or should not employ.\13\
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\13\ Kenneth Kofmehl, Professional Staffs of Congress (West
Lafayette, IN: Purdue University Press, 1962), p. 5.
What one paper from 1989 summarized as the ``perennial
congressional staff problem--how to get members of Congress the
information they need, when they need it, and in a form they
can use'' remains salient today.\14\
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\14\ James M. Verdier, ``Policy Analysis for Congress: Lengthening
the Time Horizon,'' Journal of Policy Analysis and Management, vol. 8,
no. 1 (1989), pp. 46-52.
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Staffing Congress: Regular Reform Efforts, Persistent Challenges, and
Recurring Themes
The first bills providing for regular dedicated committee
staff, assigned to the Senate Finance Committee and the House
Ways and Means Committee, date to the 1850s.\15\ Senators were
first provided with assistance in 1884, and Members of the
House were first provided with an allowance for clerks in
1893.\16\ Determining the appropriate staffing and
informational support for Congress has consumed considerable
debate ever since.
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\15\ 11 Stat. 103, an act making appropriations for the
legislative, executive, and judicial expenses of government for the
year ending June 30, 1857. This act also provided funding for ``clerks
to committees'' in the House and Senate, but separately specified a
salary for clerks of the Finance and Ways and Means Committees as well
as the House Committee on Claims.
\16\ 23 Stat. 249 and 27 Stat. 757.
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Calls for additional staff have generally cited the
workload of Members, the ever-increasing scope of the issues
confronting Congress and the Nation, and the need for adequate
oversight of the executive. Over the years, concerns related to
the adequacy of funds available for staffing, efforts to retain
experienced staff, and salary ceilings have played out against
concerns about limiting cost and objections that the use of
staff might delegate too much power.
Reform efforts have had a substantial impact on the
operation of offices and agencies established to support
Members, while also highlighting enduring, intractable
challenges related to staffing and information needs. What is
the appropriate staffing level? How much does this support
cost? What should be the split between Member, committee, and
leadership offices as well as the majority and minority or the
Washington, DC, and district or State offices? What are the
appropriate roles and duties of staff, and how can they help to
ensure an effective legislature? How should the conditions of
employment, included in House and Senate Rules and statutes, be
structured to provide maximum flexibility while ensuring
accountability of staff and employing officials?
Many concerns currently cited by some contemporary
observers--time pressures, votes held with little time for
consideration or study by Members, an information imbalance
with the executive branch, and overload of information--were
the same as those cited by reformers in Congress nearly 50
years ago.\17\ Similarly, reform efforts over the years often
have cited, as one commission did in the 1970s, ``the
increasing breadth, depth, and complexity of the tasks of''
Members at that time and the need for a ``modern management
structure'' in response.\18\
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\17\ U.S. Congress, Joint Committee on the Organization of
Congress, Organization of Congress, hearings pursuant to S. Con. Res.
2, 89th Cong., 1st Sess. (Washington, DC: GPO, 1965), pp. 2308-2322.
\18\ U.S. Congress, Senate, Toward a Modern Senate: Final Report of
the Commission on the Operation of the Senate, 94th Cong., 2d sess., S.
Doc. 94-278 (Washington, DC: GPO, 1976), p. ix.
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Most, if not all, of the major overarching congressional
reform efforts of the past century have had an administrative
and staffing component. This remains true even where the main
focus of legislation was other issues, like the committee
system (including jurisdiction and seniority), procedure, or
budget and appropriations. Whether advocating for increased
support, decreased cost, more accountability, or altering the
balance between minority and majority interests, reformers have
all shown an appreciation for the central role of support in
shaping the congressional environment and creating
opportunities for majorities, minorities, committees, and
individual Members to effect change. The repeated efforts--
including illustrative examples described below--as well as
their mixed record of legislative success, demonstrate the
near-constant interest in internal practices as well as
challenges to institutional change and recurring themes.
The conclusion of World War II provided an opportunity for
Congress to examine and streamline its internal operations. H.
Con. Res. 18 established the Joint Committee on the
Organization of Congress (JCOC) in February 1945, with a
mandate to ``make a full and complete study of the organization
and operation of the Congress of the United States and . . .
recommend improvements in such . . . .'' The JCOC then held
numerous hearings, during which testimony was received about
manpower and resource shortages affecting Congress during the
war. The challenges were both acute and mundane. The Architect
of the Capitol, for example, provided a full list of projects
for completion as soon as war conditions would permit,
including work to the roof of the House and Senate wings of the
Capitol,\19\ while the House Disbursing Officer testified,
``When this war is over we . . . will have to buy a large
number of new typewriters.'' \20\
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\19\ U.S. Congress, Joint Committee on the Organization of
Congress, Organization of Congress, hearings pursuant to H. Con. Res.
18, 79th Cong., 1st sess. (Washington, DC: GPO, 1945), p. 56.
\20\ Ibid., p. 18.
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The JCOC also discussed the use of patronage to fill
administrative positions, including its effect on efficiency,
security, and operations. Deschler's Precedents of the U.S.
House of Representatives notes that as early as 1911 an
informal Patronage Committee, nominated by the Committee on
Committees and elected by the majority caucus, divided
patronage positions among the majority Members.\21\ Similarly,
according to Senate oral histories, ``patronage dictated all
Senate staff appointments in the years before the Second World
War.'' \22\ Patronage employees could be removed from their
positions by the respective patronage committees for cause, or
by the appointing Member at will. Although the patronage system
persisted within many congressional support offices for decades
thereafter,\23\ the JCOC hearings presented some of the first
inquiries into the desirability of moving toward a more
professional staff support system.
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\21\ Lewis Deschler, Deschler's Precedents of the U.S. House of
Representatives (Washington, DC: GPO, 1977), vol. 1, pp. 199 200.
\22\ ``Darrell St. Claire: Assistant Secretary of the Senate,''
Oral History Interviews, December 1976 to April 1978, Senate Historical
Office, Washington, DC, at http://www.senate.gov/artand history/
history/resources/pdf/StClaire_Preface.pdf.
\23\ Secretary of the Senate, Senate History, at http://
www.senate.gov/artandhistory/history/ common/briefing/
secretary_senate.htm; and Francis R. Valeo, Oral History Interviews,
October 17, 1985, Senate Historical Office, Washington, DC, at http://
www.senate.gov/artandhistory/ history/resources/pdf/
OralHistory_ValeoFrancisR.pdf.
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The JCOC also examined support for individual Members.
Remarks by the House Disbursing Officer during a 1945 hearing
demonstrate the central role Members have always had in guiding
staffing, retaining their discretion as independently elected
representatives of their constituents. He stated:
[Y]ou cannot lose track of the fact that a Member of
Congress or Senator has the power to make personal selection of
his own staff and he is the judge of the type of people he can
or cannot have, and you cannot very well tie his hands.\24\
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\24\ U.S. Congress, Joint Committee on the Organization of
Congress, Organization of Congress, hearings pursuant to H. Con. Res.
18, 79th Cong., 1st sess. (Washington, DC: GPO, 1945), p. 18.
Efforts to examine staffing then, as has been necessary in
the decades since, had to consider how to properly balance the
independence of Members and chairs to choose their own staff
and determine their roles and duties while establishing basic
ground rules.
The report also included a recommendation that each
Representative and Senator be
authorized to employ a high-caliber administrative assistant at
an annual salary of $8,000 to assume nonlegislative duties now
interfering with the proper study and consideration of national
legislation.\25\
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\25\ U.S. Congress, House, Joint Committee on the Organization of
Congress, Organization of Congress, 79th Cong., 2d sess., H. Rept. 1675
(Washington, DC: GPO, 1946), p. 15.
The appropriate salary level for congressional aides, and
competition with the executive branch and private sector for
experienced staff, was discussed by Senators and
Representatives during the JCOC hearings--a concern which
continues to persist today.\26\
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\26\ The relative compensation of executive and legislative branch
staff has been discussed, for example, during the FY2005 Senate hearing
(U.S. Congress, Senate Committee on Appropriations, Subcommittee on
Legislative Branch, Legislative Branch Appropriations for FY2005,
hearings, 108th Cong., 2d sess. [Washington, DC: GPO, 2004], pp. 46,
102-103); the FY2010 House hearing (U.S. Congress, House Committee on
Appropriations, Subcommittee on the Legislative Branch, Legislative
Branch Appropriations for 2010, hearings, part 2, 111th Cong., 1st
sess. [Washington, DC: GPO, 2009], pp. 462-463, 473); and the FY2015
House hearing (U.S. Congress, House Committee on Appropriations,
Subcommittee on the Legislative Branch, Legislative Branch
Appropriations for 2015, hearings, part 2, 113th Cong., 2d sess.
[Washington, DC: GPO, 2008], p. 278); and has prompted various staff
compensation studies conducted by both Chambers. These periodic
compensation studies date to at least the early 1980s in both the House
and Senate, with the most recent Senate study in 2006 and House study
in 2010.
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Although the JCOC eventually opted not to adjust the
``clerk hire allowance,'' it did lay the groundwork for
expansion.\27\ Legislative Reference Service (LRS) Senior
Specialist and JCOC staff director George Galloway later stated
that ``more and better staff aids for members and committees of
Congress were a major objective of the Act, and much progress
in the staffing of Congress has been achieved.'' \28\
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\27\ P.L. 79-663, 60 Stat. 911, ch. 870 (August 8, 1946); P.L. 81-
430, 63 Stat. 974, ch. 783 (October 28, 1949); and P.L. 81-121, sec. 4,
63 Stat. 265, ch. 238 (June 23, 1949). See also U.S. Congress, House
Committee on House Administration, A History of the Committee on House
Administration, 1947-2012, committee print, 112th Cong., 2d sess., May
23, 2013 (Washington, DC: GPO, 2013), p. 185.
\28\ George B. Galloway, ``The Operation of the Legislative
Reorganization Act of 1946,'' American Political Science Review, vol.
45 (March 1951), p. 53.
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The JCOC report did directly address committee staffs,
however. It stated that the proposed reorganization bill would:
[E]xpand the present meager staff facilities of our
standing committees, which are the real workshops of Congress .
. . authorize the standing committees of both Houses to
exercise the continuous surveillance of the execution of the
laws by the administrative agencies within their jurisdiction .
. . and strengthen the legislative reference and legislative
counsel services which are our own unbiased research and legal
arms.\29\
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\29\ U.S. Congress, Joint Committee on the Organization of
Congress, Legislative Reorganization Act of 1946, committee print, 79th
Cong., 2d sess., July 22, 1946 (Washington, DC: GPO, 1946), p. 4.
While not addressing all questions raised during the JCOC
hearings, the resulting Legislative Reorganization Act of 1946
devoted part of Title II to ``statutory provisions relating to
congressional personnel.'' It guaranteed staff for standing
committees, provided statutory authority for the Legislative
Reference Service (predecessor of the Congressional Research
Service), and increased the authorization for the Legislative
Counsel.\30\ It also established the baseline for future reform
efforts.
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\30\ P.L. 79-601, 60 Stat. 834, August 2, 1946.
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In the 1950s and 1960s, numerous bills were introduced to
revise the 1946 act or otherwise alter congressional
support.\31\ A reestablished JCOC--which was authorized to,
among other things, examine the ``employment and remuneration
of officers and employees of the respective Houses and officers
and employees of the committees and members of Congress''--
issued multiple reports in 1965 and 1966.\32\
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\31\ See, for example: H.R. 2066 (87th Cong.); and S. Con. Res. 1
and S. 177 (88th Cong.).
\32\ S. Con. Res. 2, 89th Cong.; U.S. Congress, Joint Committee on
the Organization of Congress, Organization of Congress, interim report
pursuant to S. Con. Res. 2, 89th Cong., 1st sess., S. Rept. 89-426
(Washington, DC: GPO, 1965); and U.S. Congress, Joint Committee on the
Organization of Congress, Organization of Congress, Final Report,
report to accompany S. Con. Res. 2, S. Rept. 89-1414, 89th Cong., 2d
sess. (Washington, DC: GPO, 1966).
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The extensive hearings and reports examined the
availability of independent information for congressional
consumption as well as Congress' ability to manage and process
it. One report, which also addressed various procedural,
ethics-related, and lobby issues, included recommendations for
improving office staff and allowances, strengthening the
Legislative Reference Service, improving ``Capitol housekeeping
functions,'' and scheduling.
With respect to the allocation of resources within
committees, it stated:
It is fundamental to our legislative system that the
opposition have adequate resources to prepare informed dissent
or alternative courses of action. All sides of an issue need to
be forcefully presented.\33\
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\33\ U.S. Congress, Joint Committee on the Organization of
Congress, Organization of Congress, Final Report, report to accompany
S. Con. Res. 2, S. Rept. 89-1414, 89th Cong., 2d sess. (Washington, DC:
GPO, 1965), p. 22.
The report also addressed support for individual Members,
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stating:
The primary function of the legislator is to legislate. He
cannot be effective unless he carefully analyzes issues being
considered in committee and gives adequate consideration to
floor matters prior to vote. This requires qualified staff
assistance to condense and distill the voluminous quantity of
information available to him.\34\
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\34\ Ibid., p. 37.
Concerns over the roles and duties of Members and, by
inference, their staff were also addressed by the JCOC. With
some Members noting a perceived tension between the legislative
and constituency service roles of a Member office and questions
regarding the proportion of time Members and their staff can
spend on each, the JCOC examined proposals for delegating
casework to an administrative counsel or ombudsman. It
concluded, however, ``We believe that casework is a proper
function of an individual Member of Congress and should not be
delegated to an administrative body.'' \35\
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\35\ Ibid., p. 36.
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Although no legislation was enacted that year, pressure for
congressional reform only grew,\36\ and numerous bills were
introduced.\37\ Other legislation considered during that time
period included the House Employees Position Classification Act
of 1964, which further regularized and standardized the support
offices' staffing structure. A governmentwide antinepotism law
enacted in 1967, partially in response to a series of articles
chastising some Members for their employment practices, further
spurred the institutionalization and professionalization of
Congress.\38\
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\36\ See, for example, Julian E. Zelizer, On Capitol Hill: The
Struggle to Reform Congress and its Consequences, 1948-2000 (Cambridge,
United Kingdom: Cambridge University Press, 2004); and Christopher J.
Deering and Steven S. Smith, Committees in Congress, 3d ed.
(Washington, DC: CQ Press, 1997).
\37\ See, for example: H.R. 2594, H.R. 2595, H.R. 17138, H.R.
17873, and S. 355 (89th Cong.); and H.R. 10748, H.R. 12570, and H.R.
15687 (90th Cong.).
\38\ P.L. 88-652, 78 Stat. 1079 (October 13, 1964), 2 U.S.C. 291;
and the Postal Revenue and Federal Salary Act of 1967, P.L. 90-206, 81
Stat. 640 (December 16, 1967), 5 U.S.C. 3110.
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The interest both among Members and in the press on
internal operations subsequently culminated in the Legislative
Reorganization Act of 1970. As with the 1946 act, the 1970 act
addressed numerous support issues. Title III, ``Sources of
Information,'' addressed ensuring that Congress had the
appropriate tools for a well-functioning legislature. The House
report stated:
Among the multitude of responsibilities Congress explicitly
or implicitly assigns to its committees, none is more vital
than that of keeping watch over the administration of the laws.
That responsibility encompasses not only the duty of
determining whether existing programs are being administered in
accordance with congressional intent but also of exploring the
advisability of modifying or even of abolishing such
programs.\39\
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\39\ U.S. Congress, House Committee on Rules, Legislative
Reorganization Act of 1970, report to accompany H.R. 17654, 91st Cong.,
2d sess., H. Rept. 91-1215 (Washington, DC: GPO, 1970), p. 17.
The report concluded, ``. . . while the quality of the
staffs is high, their numbers are insufficient to meet the
increasing workload of the committees they serve.'' \40\ It
proposed an increase to the number of permanent professional
and clerical staff for standing committees as well as for
minority staffs and also provided for their training. It also
recommended reconstituting the Legislative Reference Service as
the Congressional Research Service, stipulating that House
officers had authority over the employees in their offices and
changing payroll practices to require a more transparent gross
annual salary.
---------------------------------------------------------------------------
\40\ Ibid., p. 15
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Concern about congressional support and accompanying reform
efforts did not subside, however, with multiple additional
examinations in the 1970s of the size and distribution of staff
and recognition of this link to the distribution of influence.
The Congressional Budget Act of 1974 established a new support
agency--the Congressional Budget Office--as well as new Budget
Committees in the House and Senate to provide Congress with its
own source of budgetary expertise. In the House, the Democratic
Caucus' Subcommittee Bill of Rights of 1973 and proposals from
examinations of the committee system, led by Representatives
Richard Bolling of Missouri and Julia Butler Hansen of
Washington, each had a resource component. The Subcommittee
Bill of Rights and Representative Hansen's proposals, included
as changes to the Democratic Caucus rules, addressed staffing
for subcommittee chairs. H. Res. 1248, an alternate to
proposals put forth by Representative Bolling, also looked at
committee staffing and minority assistance.\41\
---------------------------------------------------------------------------
\41\ Christopher J. Deering and Steven S. Smith, Committees in
Congress, 3d ed. (Washington, DC: CQ Press, 1997), chap. 2 (``Evolution
and Change in Committees'').
---------------------------------------------------------------------------
The report issued by Representative Bolling's Select
Committee on Committees on March 21, 1974, stated that ``no
longer simply an asset, committee staffs have become
essential,'' and proposed further increases in the number of
professional and clerical staff, as well as ensuring staffing
and resources to the minority.\42\ Stating ``the management of
information, the utilization of available space, and the
further development of administrative services are all critical
to the operations of the House of Representatives,'' \43\ it
also proposed a House Commission on Information and a House
Commission on Administrative Services and Facilities. The
subsequently created commission, the House Commission on
Information and Facilities, issued a more-than-200-page report
in December 1976.\44\ It concluded that ``the chief information
need in the House . . . is not more information but better
information, better in terms of organization, coordination,
accessibility, delivery, and usability.'' \45\
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\42\ U.S. Congress, House Select Committee on Committees, Committee
Reform Amendments of 1974, report to accompany H. Res. 988, 93d Cong.,
2d sess., H. Rept. 93-916 (Washington, DC: GPO, 1974).
\43\ Ibid., p. 6.
\44\ U.S. Congress, House Commission on Information and Facilities,
Final Report of the House Commission on Information and Facilities,
95th Cong., 1st sess., H. Doc. 95-22 (Washington, DC: GPO, 1976).
\45\ Ibid., p. 3.
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Subsequently, the House Commission on Administrative Review
(also known as the Obey Commission) \46\ included in its final
report an approximately 500-page section on administrative
reorganization. This report, issued in 1977, touched upon all
aspects of administration, financial management, support
agencies, computers and printing, procurement, and facilities
management. In introducing specific recommendations, the report
stated:
---------------------------------------------------------------------------
\46\ This commission was established by H. Res. 1368 (94th Cong.),
agreed to July 1, 1976, and known by the name of its chair,
Representative David Obey.
[T]he effectiveness and efficiency with which [the House's]
various support units operate has a critical impact on the
ability of Members and committees to do their jobs and,
consequently, on the ability of the House to carry out its
legislative and representative responsibilities under the
Constitution.\47\
---------------------------------------------------------------------------
\47\ U.S. Congress, Commission on Administrative Review, Final
Report of the Commission on Administrative Review, 95th Cong., 1st
sess., H. Doc. 95-272 (Washington, DC: GPO, 1977), p. 96.
Shortly after, a new House Select Committee on Committees
was established by H. Res. 118, agreed to on March 20, 1979.
The minority views section of its 1980 report stated that ``the
means by which an institution carries on its work significantly
influences, oh, ok deg. the quality of its product.''
\48\ Although it focused largely on jurisdictional and
procedural issues, the select committee also addressed numerous
staffing concerns, including an examination of committee
staffing, funding, and administration. It looked specifically
at the increase in committee staff since 1946, proposals for a
ceiling on the number of staff, and allocations for the
minority.
---------------------------------------------------------------------------
\48\ U.S Congress, Select Committee on Committees, Final Report of
the Select Committee on Committees, 96th Cong., 2d sess., H. Rept. 96-
866 (Washington, DC: GPO, 1980), p. 6.
---------------------------------------------------------------------------
The Senate considered similar reforms in a number of
studies and proposals in the late 1970s and early 1980s. It
authorized Senators to hire staff for the purpose of assisting
with committee work, for example, although cost and space
concerns scaled back some of the more ambitious proposals.\49\
The Commission on the Operation of the Senate (also known as
the Culver Commission) was authorized on July 29, 1975, with a
mandate to examine the entirety of the internal support
structure.\50\ The commission's final report, entitled ``Toward
a Modern Senate,'' examined ``the increasing breadth, depth,
and complexity of the tasks of Senators today.'' \51\ It then
addressed ``basic services . . . the availability and use of
space . . . how to use modern technology more effectively to
provide information to Members . . . and how to improve the
services provided by congressional support agencies.'' \52\
---------------------------------------------------------------------------
\49\ U.S. Congress, Senate Committee on Rules and Administration,
Additional Senate Committee Employees, report to accompany S. Res. 60,
94th Cong., 1st sess., S. Rept. 94-185 (Washington, DC: GPO, 1975); and
FY1978 Legislative Branch Appropriations Act, P.L. 95-94, 91 Stat. 662
(August 5, 1977), 2 U.S.C. 4332.
\50\ S. Res. 227 (94th Cong.); the commission was known by the name
of the Senator who sponsored the resolution establishing it, Senator
John Culver.
\51\ U.S. Congress, Senate, Toward a Modern Senate: Final Report of
the Commission on the Operation of the Senate, 94th Cong., 2d sess., S.
Doc. 94-278 (Washington, DC: GPO, 1976), p. ix.
\52\ Ibid.
---------------------------------------------------------------------------
The recommendations of the parallel Temporary Select
Committee to Study the Senate Committee System (also known as
the Stevenson Committee), which was authorized on March 31,
1976, also commented on committee funding and staffing.\53\ The
Senate Rules and Administration Committee, which was examining
major changes to the Senate's rules, examined some of these
proposed reforms, as well as the division of staff between the
majority and minority, during hearings on a major rules change
package. Some of these recommendations, including those
pertaining to the relative size of majority and minority staff,
were included in S. Res. 4, considered for the 95th Congress
and agreed to on February 4, 1977.
---------------------------------------------------------------------------
\53\ S. Res. 109 (94th Cong.); U.S. Congress, Senate Temporary
Select Committee to Study the Senate Committee System, Operation of the
Senate Committee System: Staffing, Scheduling, Communications,
Procedures, and Special Functions, 95th Cong., 1st sess., January 1,
1977 (Washington, DC: GPO, 1977); the committee was known by the name
of its chair, Senator Adlai Stevenson III.
---------------------------------------------------------------------------
A few years later, the Study Group on Senate Practices and
Procedures (the Pearson-Ribicoff Group) was established
pursuant to S. Res. 392, agreed to May 11, 1982. As with some
of the previous studies, it focused mainly on procedure, but
still devoted a section to reforming staffing. It proposed
prohibiting staffing for subcommittees, hoping that this would
result in a reduction of workload by forcing most work to go
through full committees.\54\ A hearing on the study group's
recommendations was held on May 9, 1983, by the Committee on
Rules and Administration, but no further action was taken at
that time.
---------------------------------------------------------------------------
\54\ U.S. Congress, Senate Committee on Rules and Administration,
Report of the Study Group on Senate Practices and Procedures to the
Committee on Rules and Administration, committee print, prepared by
Study Group on Senate Practices and Procedures, 98th Cong., 2d sess.,
S. Prt. 98-242 (Washington, DC: GPO, 1984), p. 17; the study group was
known by the names of its bipartisan leaders, Senators Abraham Ribicoff
and James Pearson.
---------------------------------------------------------------------------
By the early 1990s, Congress again embarked on a joint
effort to study congressional reform. The increasing
technological complexity of House and Senate operations, as
well as some scandals in the 1990s relating to management
problems at the House Bank and the House Post Office that
received widespread media attention, placed enhanced scrutiny
on internal processes, bringing about further reforms to
congressional administration.
The JCOC, which was reestablished with H. Con. Res. 192
(102d Congress), included an examination of staffing and
administration policies. As the final report of the JCOC
stated:
[A]lthough the Joint Committee did not hold hearings
specifically dedicated to the issue of congressional staff,
witness after witness addressed the subject in conjunction with
other reform concerns. Indeed, the hearing record is replete
with references to congressional staff in the areas of reducing
staff, allocating staff between majority and minority parties,
and use of associate staff among other things.\55\
---------------------------------------------------------------------------
\55\ U.S. Congress, Organization of the Congress, Final Report of
the Joint Committee on the Organization of Congress, 103d Cong., 1st
sess., H. Rept. 103-413, vol. II, and S. Rept. 103-215, vol. II
(Washington, DC: GPO, 1993), p. 72.
The JCOC called for staffing reductions in the legislative
branch equal to those proposed for the executive branch, as
well as periodic reauthorizations for congressional support
agencies. S. 1824 and H.R. 3801, both entitled the Legislative
Reorganization Act of 1994, were introduced in the Senate and
House, respectively, and hearings were held in both Chambers.
The Senate reported its bill (S. Rept. 103-297), and the
House held a markup of its bill, but neither piece of
legislation became law. The JCOC bills came on the heels of
additional measures, including H. Res. 419 (103d Congress), the
Republican Reform Task Force Proposal, and a number of bills
applying workplace laws to Congress introduced in the 102d and
103d Congresses.\56\ Subsequently, the proposal for staff
reductions was incorporated into the FY1994 Legislative Branch
Appropriations Act, which mandated a 4 percent decrease in
full-time equivalent employees.\57\
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\56\ In the 103d Congress, see, for example, H.R. 107, H.R. 137,
H.R. 246, H.R. 349, H.R. 2729, H.R. 4822, H.R. 4892, S. 1439, and S.
2071. In the 102d Congress, see, for example, H.R. 3734 and H.R. 4894.
\57\ P.L. 103-69, sec. 307, 107 Stat. 710 (August 11, 1993).
---------------------------------------------------------------------------
The mid-1990s saw continued efforts to ensure
accountability of congressional support services. The September
27, 1994, ``Contract with America'' promised, for example, the
reduction of committee staff by one-third. The House rules
subsequently adopted for the 104th Congress (1995-1996)
mandated the committee staff reduction; changed the
administration of the House in creating a new elected officer,
the House Chief Administrative Officer (CAO); abolished the
positions of Doorkeeper and Director of Non-Legislative and
Financial Services; reorganized functions assigned to existing
House officers; and required an audit by the House Inspector
General.\58\
---------------------------------------------------------------------------
\58\ H. Res. 6, agreed to January 5, 1995. See also U.S. Congress,
Committee on House Oversight, Report on the Activities of the Committee
on House Oversight of the House of Representatives during the One
Hundred Fourth Congress, 104th Cong., 2d sess., H. Rept. 104-885
(Washington, DC: GPO, 1997), p. 2.
---------------------------------------------------------------------------
The House of Representatives Administrative Reform
Technical Corrections Act of 1995 further altered internal
House operations. Broader changes in the legislative branch,
including the abolishment of one support agency--the Office of
Technology Assessment--as well as the enactment of the
Congressional Accountability Act further altered legislative
branch employment and support generally.
By the end of the next decade, another effort to curb
government spending led to calls for Congress to lead by
example and cut its own staffing and budget. Many accounts were
reduced, and further reductions were implemented with the March
1, 2013, sequestration.
By the Numbers: Attempts to Assess the Staffing Landscape and
Challenges
Despite the near-constant attention, assessing change over
time of the congressional support apparatus is challenging for
many reasons. Official, consistent staffing data are generally
not available. As an independent branch of government, the
legislative branch often does not have the same reporting
requirements as the executive branch.\59\ Various sources may
be consulted, although they sometimes offer conflicting
historical data. In addition, changes in office and account
structure may complicate comparisons over time.\60\
---------------------------------------------------------------------------
\59\ No single official source of staff levels over time exists,
either overall or by office type. For example, the Office of Personnel
Management (OPM) maintains a quarterly ``Employment & Trends, Table 9--
Federal Civilian Employment and Payroll (in thousands of dollars) by
Branch, Selected Agency, and Area'' publication as well as tables on
``Executive Branch Civilian Employment Since 1940'' and ``Total
Government Employment Since 1962'' (although the first contains an
asterisk indicating ``*Preliminary or Previous Quarter's Employment or
Payroll Totals (or Portions Thereof) Were Used for Current Quarter''
and the latter combines legislative and judicial branch data).
For early estimates of Member and committee staff, see Harrison W.
Fox, Jr. and Susan Webb Hammond, Congressional Staffs: The Invisible
Force in American Lawmaking (New York: Free Press, 1977), table 3, p.
171; and George B. Galloway, ``The Operation of the Legislative
Reorganization Act of 1946,'' American Political Science Review, vol.
45 (March 1951), p. 54. For more recent estimates using payroll or
telephone entries, see Norman J. Ornstein, Thomas E. Mann, Michael J.
Malbin, et al., Vital Statistics on Congress, A Joint Effort from The
Brookings Institution and the American Enterprise Institute,
Washington, DC, July 2013, chapter 5, at http://www.brookings.edu/
research/reports/2013/07/vital-statistics-congress-mann-ornstein; and
CRS Report R41366, House of Representatives and Senate Staff Levels in
Member, Committee, Leadership, and Other Offices, 1977-2010, by R. Eric
Petersen, Parker H. Reynolds, and Amber Hope Wilhelm.
\60\ In the House, for example, the account structure for funding
Member office staff changed with the establishment of the Members'
representational allowance (CRS Report R40962, Members'
Representational Allowance: History and Usage, by Ida A. Brudnick);
committee staff changed with the elimination in the 104th Congress of
the distinction between statutory and investigative staff; and some
staff have been transferred from the payroll of the Clerk of the House
to a leadership office (P.L. 104-53, 109 Stat. 519 [November 19, 1995];
and P.L. 107-68, 115 Stat. 572 [November 12, 2001], 2 U.S.C. 5123
note).
---------------------------------------------------------------------------
Additionally, the unit of comparison--for example, whether
one looks at just Member, committee, and leadership offices,
the House and Senate Chambers, or the entirety of the
legislative branch--must be chosen, with benefits and drawbacks
of each approach. A narrow focus on the level of support
provided one type of office may obscure larger changes to the
institution. On the other hand, a broad examination may not
take into account the peculiarities of the congressional
environment or technological or internal changes. Additionally,
in an environment where offices enjoy a great degree of freedom
in determining their needs, allocating their resources, and
setting the terms and conditions of employment, funding and
staffing data may present different pictures. Furthermore, in
the congressional environment, duties and influence may be more
nuanced than any quantitative picture may present. Available
information, however, does present a mixed picture on the
changes in congressional resources over time.
The statutory maximum full-time staffers authorized for
individual Members of the House, which grew steadily between
1893 and the 1970s to reach 18 persons, has not been changed
since.\61\ This unchanged staff ceiling is notable given the
vast changes in the size of the average congressional district
during this period. According to the U.S. Census Bureau, over
the past century, the ``average size of a congressional
district based on the 2010 Census apportionment population will
be 710,767, more than triple the average district size of
210,328 based on the 1910 Census apportionment.'' \62\ The
average congressional district population size was 469,088 in
1970, as the House was setting the limit on Members' personal
staff. From the 1970 census through the 2010 census, the
average congressional district population increased by 52
percent.\63\
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\61\ For a more extensive discussion, see U.S. Congress, House
Committee on House Administration, A History of the Committee on House
Administration, 1947-2012, committee print, 112th Cong., 2d sess., May
23, 2013 (Washington, DC: GPO, 2013).
\62\ U.S. Census Bureau, ``Congressional Apportionment,'' 2010
Census Briefs, issued November 2011, at http://www.census.gov/prod/
cen2010/briefs/c2010br-08.pdf.
\63\ U.S. Census Bureau, ``Apportionment Data,'' at http://
www.census.gov/2010census/data/ apportionment-data.php.
---------------------------------------------------------------------------
While the Senate provides an authorized dollar amount but
not a maximum authorized staff level, according to figures
included in the annual Senate Appropriations Committee reports,
the number of staff in individual Senators' offices in 2014 is
near the 1985 level.\64\ Similarly sized staffs must respond to
far more constituents in both Chambers.
---------------------------------------------------------------------------
\64\ U.S. Congress, Senate Committee on Appropriations, Legislative
Branch Appropriations, 2015, report to accompany H.R. 4487, 113th
Cong., 2d sess., June 19, 2014, S. Rept. 113-196 (Washington, DC: GPO,
2014), p. 22; and ``U.S. Senate Senator's staff as of September 30,
1985-94 and March 31, 1995,'' table in U.S. Congress, Senate Committee
on Appropriations, Legislative Branch Appropriations, 1996, report to
accompany H.R. 1854, 104th Cong., 1st sess., July 18, 1996, S. Rept.
104-114 (Washington, DC: GPO, 1996), pp. 25-26.
---------------------------------------------------------------------------
Various estimates also indicate a smaller House and Senate
staff than existed three decades ago. One study, for example,
found that House committee staffs decreased nearly 28 percent
from 1977 to 2009, while Senate committee staffs increased
(nearly 15 percent), albeit at a much slower pace than other
categories of Senate offices. Between 1977 and 2009, according
to this study, however, the number of House staff grew
approximately 11 percent. The number of Senate staff grew
approximately 80 percent, although it still had nearly 40
percent fewer staff than the House. This trend is also evident
in the executive branch, which, according to OPM data, has
nearly 23 percent fewer staff than it did in 1977.
The appropriation for the House Members' representational
allowance (MRA) in constant dollars varied little from FY1996
to FY2001, before increasing for about a decade. It then fell
each year in constant dollars from FY2011 through FY2013, with
the FY2013 level approximately equivalent to the FY1996 level
in purchasing power.\65\ The Senators' Official Personnel and
Office Expense Account (SOPOEA) was similarly reduced each year
from FY2010 through FY2013, with the FY2013 level approximately
equivalent to the FY2006 level.\66\
---------------------------------------------------------------------------
\65\ See ``Figure 1. Fiscal Year Appropriations for the Members'
Representational Allowance'' in CRS Report R40962, Members'
Representational Allowance: History and Usage, by Ida A. Brudnick.
\66\ See also language in P.L. 112-10, enacted on April 11, 2011,
stating that ``each Senator's official personnel and office expense
allowance (including the allowance for administrative and clerical
assistance, the salaries allowance for legislative assistance to
Senators, as authorized by the Legislative Branch Appropriation Act,
1978 (P.L. 95-94), and the office expense allowance for each Senator's
office for each State) in effect immediately before the date of
enactment of this section shall be reduced by 5 percent.'' Similarly,
each Member's MRA for 2012, for example, was ``88.92% of the amount
authorized in 2010 . . . in accordance with a 5% reduction to the 2010
authorization mandated in House Resolution 22, agreed to on January 6,
2011, and a 6.4% reduction to the 2011 authorization as reflected in
H.R. 2055, the Consolidated Appropriations Act, 2012 (P.L. 112-74).''
Individual MRAs for 2013 were further reduced by 8.2 percent. (U.S.
Congress, House, Statement of Disbursements of the House, as compiled
by the Chief Administrative Officer, from January 1, 2012, to March 31,
2012, part 3 of 3, 112th Cong., 2d sess., H. Doc. 112-106 (Washington,
DC: GPO, 2012), p. 3225.)
---------------------------------------------------------------------------
Legislative branch appropriations overall decreased each
year from FY2010 through FY2013, and related reductions were
seen in the funding for many Member, committee, leadership,
officer, and support agency accounts in the 112th and 113th
Congresses (2011-2014).\67\ Furthermore, in constant dollars,
the FY2014 appropriation was smaller than the appropriation for
FY2004.\68\ Legislative branch resources can also be placed in
context of the larger Federal budget, where, since at least
1976, it has composed approximately 0.4 percent of total
discretionary budget authority.
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\67\ H. Res. 22 (112th Cong.); and P.L. 112-74, P.L. 112-74, P.L.
113-6, and P.L. 113-76.
\68\ Table 3. Legislative Branch Appropriations, FY2004-FY2014
(budget authority in billions of dollars), in CRS Report R43557,
Legislative Branch: FY2015 Appropriations, by R. Eric Petersen and Ida
A. Brudnick.
---------------------------------------------------------------------------
Conclusion
A historical examination of the efforts to reform the
congressional staff network demonstrates a continuity in the
concerns related to the operation and internal functioning of
Congress--time pressures; obtaining, organizing, and processing
information; division of resources; and cost, oversight, and
accountability--as well as to the proposed solutions. Whether
as part of more comprehensive reviews of congressional support
or in more targeted studies of individual offices or issues of
concern, debates related to congressional reform have uniformly
contained a discussion of staff and information needs. Many of
the concerns identified, and the solutions proposed, however,
have changed little since the early days of congressional
staffing.
Although the examples of proposed reforms mentioned in this
report met with varying legislative success, they demonstrate
the continued congressional interest and struggles in Congress
in examining its own practices, determining the appropriate
level and type of support, and efficiently managing taxpayer
resources.
Overall, Congress has attempted to ensure the independence
of Members and chairs to choose their own staff and determine
their roles and duties while establishing basic ground rules
and remaining aware of cost and accountability considerations
throughout the legislative branch. Congress has also worked to
determine how to allocate limited resources among Members,
committees, leaders, and support offices. As Congress looks
ahead to the next century, the details of staffing concerns may
vary as new challenges and technologies arise, but many of
these fundamental questions will remain.
The Unchanging Nature of Congressional Elections
Kevin J. Coleman
Analyst in Elections
and
R. Sam Garrett
Specialist in American National Government
----------
Major elements of congressional elections remain
remarkably consistent despite profound changes to the
social and political environment in the past century.
The country's population is vastly different as the
result of immigration and natural growth; the role of
the political parties in elections is diminished--but
still vital--as the candidates themselves have taken
over their campaigns; and the campaign finance system
has been significantly transformed, with vast amounts
spent in each election cycle. And yet, congressional
campaigns are relatively unchanged in important ways.
The goal of campaigning continues to be an effort to
persuade voters one by one. Even election outcomes are
relatively consistent: the two parties continue to
dominate elections; incumbents are routinely reelected;
and voter participation is fairly stable. After a
century of extraordinary change, congressional
campaigns are different than in the past in certain
respects, while they also retain key, unchanged
characteristics that have simply been adapted to a
modern era.
Introduction
The United States has experienced vast changes in the past
century, so it would seem a foregone conclusion that the means
of getting elected to Congress would have undergone vast
changes as well. In some respects this is true. The average
population of a congressional district was 280,675 in 1930,
while it is more than 2\1/2\ times that number today at
710,767.\1\ The two political parties once vetted the
candidates and were deeply involved in congressional campaigns,
particularly campaign messaging. Candidates today run
independently of the parties. Changes in technology and
especially fundraising have transformed the political
landscape. Television and the Internet became widely available
in the 1940s and 1990s, respectively, and were soon adapted to
political use, greatly increasing a candidate's ability to
connect with voters. In the closing months of a single 2014
Senate race, the Democratic Senatorial Campaign Committee
(DSCC) announced plans to spend $9.1 million in broadcast ads.
That amount was only slightly less than the estimated $9.8
million that campaigns spent nationwide on broadcast
advertising in 1956.\2\ Changes in election laws have also
expanded the electorate to include women, younger voters,
African Americans, and language minorities, and have made
registration and voting increasingly easy.
---------------------------------------------------------------------------
\1\ The House size was set at 435 in 1911; U.S. Bureau of the
Census, Apportionment Data, http://www.census.gov/2010census/data/
apportionment-data-text.php.
\2\ Alexis Levinson, ``Senate Democrats Launch $9.1 Million Ad Buy
in North Carolina,'' Roll Call, August 13, 2014, at http://
atr.rollcall.com/senate-democrats-launch-9-1-million-ad-buy-in-north-
carolina/. As noted later in this report, the 1956 estimate should be
treated with caution, although it is useful for historical comparison.
---------------------------------------------------------------------------
Other changes that have affected congressional elections
include the growth of the national population and its increased
heterogeneity as the result of immigration and a decline in
white birth rates. Internal shifts have also realigned
population groups within the country, and the regional bases of
the political parties have changed as well. Finally, election
outcomes are different in some respects, particularly regarding
turnover in House seats and a decline in the number of
competitive House races.
And yet, congressional campaigns are relatively unchanged
in important ways. The simplest rule of getting elected remains
the same as ever: turn out more voters than one's opponent,
preferably by making personal contact with as many of them as
possible. This tenet was reflected in a recent observation by a
member of the House leadership regarding the current cycle:
``Just run your race, get out your vote, go door to door,
everybody you meet will vote for you, by and large.'' \3\ To
use an analogy, if one could watch a professional baseball game
from 1914, it might appear to be quite different from today's
game--from the crowd and venue to the smaller size of the
players, their equipment and uniforms, and so on--yet the game
itself would be instantly recognizable.\4\ The core elements
are enduring. Congressional elections are a national pastime
perhaps slightly less beloved, but with similar constancy.
---------------------------------------------------------------------------
\3\ Ed O'Keefe, ``With `Action Plan,' Democrats hope to grab
voters' attention,'' The Washington Post, July 16, 2014, p. A6.
\4\ Fenway Park in Boston opened in 1912 with a seating capacity of
11,000; Wrigley Field opened in Chicago in 1914 as Weeghman Park with a
seating capacity of 14,000; today's ballparks vary in size from 31,042
(Tropicana Field) to 56,000 (Dodger Stadium). With respect to player
size, SB Nation, an online sports network, found that the average
height and weight of a major league player has increased about 7
percent and 14 percent, respectively, since the 1870s; at http://
www.beyondtheboxscore.com/2011/4/19/2114631/the-changing-size-of-mlb-
players-1870-2010.
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Although new campaign techniques and technologies developed
at a rapid pace beginning in the mid-20th century, they have
been adopted slowly, at times, and have tended to supplement,
rather than replace, traditional grassroots organizing.\5\ An
early assessment of the use of the Internet as a campaign tool
noted that, while it would be useful in many aspects of
campaigns, ``[t]he Internet will not produce the mobilization
of voters long predicted.'' \6\ Even election outcomes have
been relatively consistent in certain respects. The two parties
continue to completely dominate elections, for example. There
are currently two Members of Congress who are Independents. The
last time there were more than two Members who were not major
party members was 1950, when there were three, but in most
years there were none.\7\ Recent incumbent reelection rates are
consistently in the 80s and 90s in percentage terms (although
Senate rates are more irregular), similar to what they were in
the 1960s. Using a different measure, high-turnover elections
were more common in the early decades of the 20th century than
they have been since the 1950s. For example, Republicans gained
control of the House for the first time since 1952 when they
picked up 54 seats in the 1994 election. The 2010 election was
similarly a high-turnover election when Republicans picked up
64 seats. The next highest number of seats gained since 1980
was 34 (for Republicans, which resulted in a 243-192 partisan
lineup in favor of the Democrats). By way of comparison,
between 1900 and 1950, there were 11 elections in which 1 party
or the other gained at least 34 seats.
---------------------------------------------------------------------------
\5\ For example, the American Institute of Public Opinion,
eventually known as the Gallup Organization, was founded in 1935, but
the widespread use of polls in campaigns to shape messaging and tactics
did not occur until the late 1960s and early 1970s. See http://
www.gallup.com/corporate/21364/George-Gallup-19011984.aspx; and Sasha
Issenberg, The Victory Lab: The Secret Science of Winning Campaigns
(New York: Broadway Books, 2012), p. 108.
\6\ Bruce Bimber and Richard Davis, Campaigning Online: The
Internet in U.S. Elections (New York: Oxford University Press, 2003),
pp. 166-167.
\7\ Harold W. Stanley and Richard G. Niemi, Vital Statistics on
American Politics, 2013-2014 (Thousand Oaks, CA: CQ Press, 2013), pp.
30-31.
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This report discusses some profound changes to the
campaigns and elections environment, while it also discusses
some of the ways that congressional campaigns have not changed,
but have simply been adapted to a modern era. The following
pages highlight four major themes: (1) the environment in which
congressional campaigns are waged; (2) campaign finance; (3)
electoral outcomes; and (4) voters. The report is not intended
to be exhaustive. Rather, the discussion seeks to illustrate
the evolution of congressional campaigns. In doing so, the
report provides congressional readers with a resource for
understanding how the contests that decide the membership of
the House and Senate have evolved over the past century to
include thousands of candidates, millions of voters, and
billions of dollars.
The Campaign Environment
Population Changes
Based on population, the America that existed in the late
19th century was an entirely different country from the one
that entered the Great Depression in 1929, and not simply
because there were more people. A massive surge in immigration
during that period transformed the Nation in a way that would
be difficult to overstate. About 25 million Europeans emigrated
to the United States between 1880 and 1924,\8\ most of whom
arrived from countries other than the ``old immigrant'' nations
of Great Britain, Germany, and Ireland. Over 1 million
immigrants arrived in 1906 and again in 1907, for example,
mostly from the central and southern European countries of
Austria, Hungary, Russia, and Italy (over 700,000 in 1906 and
over 800,000 in 1907). Fewer than 300,000 had departed for the
United States in that 2-year period from Great Britain,
Germany, and Ireland. That trend continued until the
Immigration Restriction Act of 1921 and the Immigration Act of
1924 capped the number of immigrants from a country at 3
percent and 2 percent, respectively, of the number of persons
from that country who were living in the United States in 1890.
---------------------------------------------------------------------------
\8\ Historical Statistics of the United States: Colonial Times to
1970, Bicentennial Edition (Washington, DC: U.S. Department of
Commerce, 1975), pp. 105-106.
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The high water mark for the foreign-born population of the
United States occurred in 1930, according to the Census Bureau,
when 14 million out of the total population of 122 million were
born outside the country.\9\ The number of naturalized persons
in 1930 was 7.9 million, meaning that a sizeable number were at
least theoretically eligible to vote in elections. Furthermore,
a number of Southern and Midwestern States permitted
noncitizens to vote in the late 19th and early 20th centuries.
In fact, the 19 States that allowed noncitizens to vote during
that time had repealed earlier laws that banned noncitizen
voting.\10\ In the South, the intent was to recruit Democratic
Party supporters and rebuild the labor base after the Civil War
and, in the West and Midwest; to promote westward expansion by
conferring voting rights before citizenship had been attained.
---------------------------------------------------------------------------
\9\ Historical Statistics of the United States: Earliest Times to
the Present, ed. Susan B. Carter, Scott Sigmund Gartner, Michael R.
Haines, Alan L. Olmstead, Prichard Sutch, Gavin Wright, Millennial
Edition, vol. 1 (New York: Cambridge University Press, 2006), pp. 1-
166.
\10\ The States that repealed such voting laws between 1868 and
1926 were Alabama, Arkansas, Colorado, Florida, Georgia, Indiana,
Kansas, Louisiana, Michigan, Minnesota, Missouri, Nebraska, North
Dakota, Oregon, South Carolina, South Dakota, Texas, Wisconsin, and
Wyoming; Jerrold G. Rusk, A Statistical History of the American
Electorate (Washington, DC: CQ Press, 2001), pp. 16-17, 32.
---------------------------------------------------------------------------
Internal population migrations also altered the social and
political landscape, particularly the Great Migration of the
early 20th century. Until the migration began around 1910, the
black population of the country was almost entirely southern. A
variety of factors stimulated black migration from the rural
South to the cities of the Northeast and Midwest between 1910
and 1970, particularly the mechanization of harvesting cotton,
racial segregation and violence, and the need for workers in
the growing economies of industrial cities, first as
immigration from Europe declined at the outset of World War I
and again as the country prepared for World War II.
In 1900, over 7 million (7,126,617) blacks lived in the
former Confederate States of Alabama, Arkansas, Florida,
Georgia, Louisiana, Mississippi, North Carolina, South
Carolina, Tennessee, Texas, and Virginia. The number living in
New England; the Middle Atlantic States of New York, New
Jersey, and Pennsylvania; and the Midwestern (industrial)
States of Ohio, Indiana, Illinois, Michigan, and Wisconsin was
642,862.\11\ By 1970, the number of blacks in the
aforementioned Southern States was 10,188,000, and in the
Northern States it was 8,218,000.\12\ Consequently, it was
``one of the largest and most rapid mass internal movements of
people in history--perhaps the greatest not caused by the
immediate threat of execution or starvation.'' \13\ The Great
Migration reshaped American society and politics in the North
and the South--and eventually other regions of the country--and
it placed race relations at the center of leading national
issues, rather than one that had been mostly confined to the
South. Today there are 25 majority African American
congressional districts in a cross section of States.\14\
(There are also 55 districts across the country in which the
combined minority group populations--African American,
Hispanic, and Asian--constitute the majority within the
district and whites are the minority).\15\
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\11\ U.S. Department of Commerce, Bureau of the Census, Statistical
Abstract of the United States, 1939, 61st ed. (Washington: Government
Printing Office, 1940), pp. 14-15.
\12\ U.S. Department of Commerce, Bureau of the Census, 101st ed.
(Washington, DC: GPO, 1980), p. 36.
\13\ Nicholas Lemann, The Promised Land: The Great Black Migration
and How It Changed America (New York: Alfred A. Knopf, 1991), p. 6.
\14\ The States in which there is a majority African American
congressional district are Alabama, Florida, Georgia, Illinois,
Louisiana, Maryland, Michigan, Mississippi, New Jersey, New York, North
Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia;
see Vital Statistics on American Politics, 2013-2014, pp. 48-52.
\15\ Ibid.
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Another spike in immigration that began in the 1960s
resulted in a burgeoning Hispanic and Asian American and
Pacific Islander population. Changes in U.S. immigration laws
as well as political and economic unrest in some Asian and
Latin American countries brought millions of immigrants in the
ensuing decades. In 1950, the Hispanic population was just over
3.2 million.\16\ As of the 2010 Census, there were 50.5 million
\17\ people of Hispanic origin in the United States--or 16
percent of the total population--as the result of immigration
and a high birth rate. Regarding the geographic distribution of
Hispanics, 77 percent live in the West and South; there are 33
congressional districts in which they are the majority of the
population, all but 4 of which are in Southern and Western
States.\18\
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\16\ Historical Statistics of the United States, pp. 1-177.
\17\ U.S. Department of Commerce, U.S. Census Bureau, The Hispanic
Population: 2010, May 2011, p. 2.
\18\ There is one majority Hispanic district in Illinois, one in
New Jersey, and two in New York; see Vital Statistics on American
Politics, 2013-2014, pp.48-52.
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Likewise, the Asian population of the United States has
increased rapidly since 1960, when it was 877,934.\19\ Today,
Asians are the fastest growing segment of the U.S. population.
While the total population grew by 9.7 percent between 2000 and
2010, the Asian population increased by 43 percent to 14.7
million.\20\ There is one majority Asian congressional
district, in Hawaii.
---------------------------------------------------------------------------
\19\ Herbert R. Barringer, Robert W. Gardner, and Michael J. Levin,
Asians and Pacific Islanders in the United States (New York: Russell
Sage Foundation, 1993), p. 39.
\20\ U.S. Department of Commerce, U.S. Census Bureau, The Asian
Population: 2010, March 2012, p. 3.
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The 20th century transformation of the national population
has profoundly shaped congressional elections, as the
electorate has become more diverse and political issues have
been shaped by changes in demographics. At least two trends
from the previous 100 years--immigration and rapidly increasing
minority populations--are likely to continue for some time in
the present century.
The Electorate and Voting Laws
The electorate has expanded significantly in the past
century, following the removal of voting restrictions based on
sex, race, and age. Women gained the right to vote in 1920,
when the 19th Amendment was ratified. The Voting Rights Act of
1965 (P.L. 89-110) secured voting rights for African Americans,
nearly 100 years after the adoption of the 15th Amendment that
stated ``the right of citizens of the United States to vote
shall not be denied or abridged by the United States or any
State on account of race, color, or previous condition of
servitude.'' \21\ The Voting Rights Act Amendments of 1975
required that bilingual election materials be made available in
certain jurisdictions if a language minority was 5 percent of
the population and the illiteracy rate in English for the group
exceeded the national rate. The 26th Amendment extended the
vote to 18-year-olds in 1971; until then, most States set the
voting age at 21.
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\21\ For additional information, see CRS Report R43626, The Voting
Rights Act of 1965: Background and Overview, by Kevin J. Coleman.
---------------------------------------------------------------------------
In addition to laws and amendments that established
universal suffrage, voting itself has generally become easier
and more convenient. The National Voter Registration Act of
1993, the ``motor-voter'' law (P.L. 103-31), made voter
registration available at motor vehicle agencies in every
State.\22\ A series of laws expanded voting opportunities for
members of the uniformed services and overseas citizens,
including the Soldier Voting Act of 1942 (P.L. 77-712), the
Federal Voting Assistance Act of 1955 (P.L. 84-296), the
Overseas Citizens Voting Act of 1975 (P.L. 94-203), and the
Uniformed and Overseas Citizens Absentee Voting Act of 1986
(P.L. 99-410).\23\ Finally, State-enacted innovations that have
increased voter convenience, such as ``no excuse'' absentee,
permanent absentee, and early voting, have flourished since
2000, although some States have recently enacted changes to
restrict voter registration and early voting or to require some
type of identification for voting.
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\22\ For additional information, see CRS Report R40609, The
National Voter Registration Act of 1993: History, Implementation, and
Effects, by Royce Crocker.
\23\ For additional information, see CRS Report RS20764, The
Uniformed and Overseas Citizens Absentee Voting Act: Overview and
Issues, by Kevin J. Coleman.
---------------------------------------------------------------------------
Congressional elections have also been affected by court
rulings and Federal legislative action regarding the
redistricting process.\24\ Beginning with Baker v. Carr \25\ in
1962 and followed by a series of subsequent cases, the U.S.
Supreme Court has established rules or constraints for the
States in drawing congressional district boundaries.\26\ In
addition, the Voting Rights Act, as amended in 1982,
established the principle of preventing the dilution of
minority voting power in elections.\27\ The Supreme Court
recognized the application of that principle to redistricting
in Thornburg v. Gingles \28\ in 1986. As a result of the
various Supreme Court cases, what had previously been a largely
political process administered by the States is subject to such
considerations as creating equal district populations, avoiding
minority vote dilution, compactness, and contiguousness. The
characteristics of each congressional district, in turn, have
obvious practical implications for the candidates who contest
elections within them.
---------------------------------------------------------------------------
\24\ For additional information, see CRS Report R42831,
Congressional Redistricting: An Overview, by Royce Crocker.
\25\ 369 U.S. 186 (1962).
\26\ Baker v. Carr established that the redistricting process was
justiciable and first applied to redistricting of U.S. House seats in
Wesberry v. Sanders, 376 U.S. 1 (1964).
\27\ For additional information, see CRS Report R42482,
Congressional Redistricting and the Voting Rights Act: A Legal
Overview, by L. Paige Whitaker; and CRS Report R43626, The Voting
Rights Act of 1965: Background and Overview, by Kevin J. Coleman.
\28\ 478 U.S. 30 (1986).
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Parties and Campaign Messaging
Until relatively recently, what were once party-dominated,
largely nationalized contests have become what are commonly
called ``candidate-centered'' campaigns. In the early 1900s,
individual candidates might well have had little role in their
own campaigns. In fact, individuality in congressional
campaigns in general was scarce historically. As early as 1866,
House Republicans formed a precursor to the National Republican
Congressional Committee (NRCC) to balance Presidential
influence over party campaign themes. Democrats followed suit
shortly thereafter, solidifying an era of party-dominated
campaigning.\29\
---------------------------------------------------------------------------
\29\ Robin Kolodny, Pursuing Majorities: Congressional Campaign
Committees in American Politics (Norman, OK: University of Oklahoma
Press, 1998), p. 4.
---------------------------------------------------------------------------
Especially in major cities in the industrial Midwest and
along the east coast--such as Chicago, Cleveland, Kansas City,
New York, and, most famously, Boston--campaigns were largely a
product of entrenched machine politics. Machines were primarily
a Democratic, urban phenomenon, although a few well-known
Republican machines thrived elsewhere (such as in Nassau
County, New York, and Orange County, California).\30\ Parties
maintained their grip on power through patronage. At the height
of their power, machines constituted ``informal
government[s],'' controlling up to 35,000 public-sector jobs in
Chicago, for example, and far more votes secured through ethnic
and neighborhood loyalties.\31\ Officeholders and candidates
were also expected to make payments that amounted to ``an
informal tax system to sustain parties.'' \32\
---------------------------------------------------------------------------
\30\ For an overview, see, for example, Marjorie Randon Hershey,
Party Politics in America, 12th ed. (New York: Pearson, 2007), pp. 52-
54.
\31\ Ibid., p. 53.
\32\ Mark Wahlgren Summers, `` `To Make the Wheels Revolve We Must
Have Grease': Barrel Politics in the Gilded Age,'' The Journal of
Policy History, vol. 14, no. 1 (2002), p. 63.
---------------------------------------------------------------------------
By the mid-20th century, Progressive Era reforms had
weakened parties' roles in orchestrating individual campaigns.
Increasingly, voters took their cues from radio, television,
and civic organizations rather than from the comparatively
insular world of ward-based politics. Parties also struggled to
appeal to an increasingly diverse group of voters, influenced
by developments such as changes in immigration, the Great
Migration of southern blacks to northern cities, and the civil
rights movement.
Campaign operations were changing, too. As party influence
over individual campaigns waned, a new style of campaigning,
known as ``candidate-centered campaigning,'' emerged. At least
two elements were central to the candidate-centered campaign:
broadcast political advertising and political consulting. Both
helped candidates adapt to changing environments.
New forms of campaigning required more complexity than in
the past. ``Old styles of campaigning--through rallies and
other events--did not work.'' \33\ New technologies, including
computerized polling analysis, broadcasting, and specialized
political professionals and detailed campaign plans became the
norm. The shift from print advertising to radio and television
required substantial spending. Nationwide, campaigns at all
levels spent an estimated $9.8 million in 1956--an amount that
more than tripled to $32 million within a decade.\34\ Ever
since, broadcast advertising generally has been the largest
budget item in House and Senate campaigns.
---------------------------------------------------------------------------
\33\ Robert J. Dinkin, Campaigning in America: A History of
Election Practices (New York: Greenwood, 1989), p. 159.
\34\ These estimates are attributed to reports filed with the Clerk
of the House, the Federal Communications Commission, and the Citizens'
Research Foundation, and appear in Statistical Abstract of the United
States 1970 (U.S. Department of Commerce, Bureau of the Census, 1970),
Table 526, p. 372. It is important to note that, although these data
provide historical reference points, systematic and reliable campaign
finance data did not become available until after Congress mandated
reporting in the 1971 Federal Election Campaign Act (FECA) and, in
particular, subsequent amendments. Effective September 2014, FECA is
codified at 52 U.S.C. 30101 et seq. (previously at 2 U.S.C. 431 et
seq.). When adjusted for inflation to 2014, the figures in the text
would be approximately $86 million and $235 million respectively.
---------------------------------------------------------------------------
As broadcast advertising became more important, a new class
of political professionals emerged to help candidates and
parties appeal to voters through new media. Political
consulting emerged as a distinct profession as early as the
1930s, but grew steadily beginning in the 1960s, largely as a
result of media consulting.\35\ As consultant influence
increased, tension sometimes emerged between party officials
and these autonomous political professionals, who are typically
affiliated with a party but often work for multiple clients
simultaneously as independent contractors. For some,
consultants represented a threat to parties as a repository of
cohesive campaign strategy and organizational wisdom. As
discussed below, particularly by the 1980s, many also believed
that political action committees (PACs) undermined parties'
financial influence in congressional elections.
---------------------------------------------------------------------------
\35\ For an overview of the development of political consulting,
see, for example, David A. Dulio, For Better or Worse? How Political
Consultants are Changing Elections in the United States (Albany, NY:
State University of New York Press, 2004); Stephen K. Medvic, Political
Consultants in U.S. Congressional Elections (Columbus, OH: The Ohio
State University Press, 2001); and Larry J. Sabato, The Rise of
Political Consultants: New Ways of Winning Elections (New York: Basic
Books, 1981).
---------------------------------------------------------------------------
The rise of broadcast advertising was just one of the major
mid-century changes that many observers believed was upending
established campaign practices. Even traditional political
institutions were allegedly undermined by candidate-centered
campaigning. Since at least the 1950s, some observers had
warned that parties risked extinction as major players in
congressional elections. Also, in the 1950s scholars feared
that interest groups devoted to a narrow set of policy issues
threatened party vitality. By the 1960s, sharp increases in the
number of Americans who claimed to be politically
``independent'' were allegedly responsible for weakening
parties, particularly because research suggested that those who
declined to identify with a party were politically
disengaged.\36\ Not only did those calling themselves ``strong
partisans'' fall steadily, but also more voters believed that
they were rejecting party labels altogether by identifying as
``independents.'' This trend was particularly pronounced
between 1964 and 1974, when prominent social science polling
showed a jump in ``independent'' voters from 23 percent to 38
percent respectively, possibly attributed to social unrest
surrounding the Vietnam war and declining trust in government
following Watergate.\37\ Nonetheless, subsequent research
revealed that even those who viewed themselves as dedicated
``independents'' usually continued to hold solidly partisan
policy positions that affected their voting behavior.\38\ The
number of independents has been roughly steady since the
Watergate era.\39\
---------------------------------------------------------------------------
\36\ Angus Campbell et al., The American Voter: An Abridgement (New
York: Wiley, 1964), p. 83.
\37\ The cited polling data are from Norman H. Nie, Sidney Verba,
and John R. Petrocik, The Changing American Voter (Cambridge, MA:
Harvard University Press, 1976), p. 49. Other parts of the book discuss
public reaction to Vietnam and Watergate.
\38\ Bruce E. Keith et al., The Myth of the Independent Voter
(Berkeley, CA: University of California Press, 1992).
\39\ Michael S. Lewis-Beck et al., The American Voter Revisited
(Ann Arbor, MI: University of Michigan Press, 2008), pp. 126-127.
---------------------------------------------------------------------------
Over time, the two major parties adapted to developments in
the congressional campaign environment. By the 1980s, the
national party committees, in particular, adapted from their
previous, hierarchical structures to focus more on providing
specific services to individual campaigns.\40\ This ``party
service'' model included technical assistance such as polling,
data analysis, and training. Parties also continued to play a
central role in recruiting candidates. Despite some simmering
tensions, most observers agreed by the 2000s that parties and
consultants accommodated each other through an informal
division of labor. As one parties scholar observed recently,
``By the time their decay had become the central theme of books
and articles about parties . . . there were clear signs of
resurgence. The parties have grown into different types of
organizations than they once were, but . . . they continue to
be a vital part of the American political landscape.'' \41\
---------------------------------------------------------------------------
\40\ For an overview of this literature and period, see, for
example, Paul S. Herrnson, Party Campaigning in the 1980s (Cambridge,
MA: Harvard University Press, 1988).
\41\ Marjorie Randon Hershey, Party Politics in America, 12th ed.
(New York: Pearson, 2007), p. 303.
---------------------------------------------------------------------------
The Political Geography of the Parties
The regional bases of the Democratic and Republican Parties
have changed significantly since the 1960s. The most noteworthy
shift in regional strength was the transformation of the South
from Democratic to Republican domination. After the 1960
election, Democrats held 99 of 106 House seats and all 22
Senate seats in Southern States.\42\ Following the 2012
election, Republicans held 98 House seats and Democrats held
40, and Republicans held 16 of 22 Senate seats.
---------------------------------------------------------------------------
\42\ The States discussed are the 11 former Confederate States,
including Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi,
North Carolina, South Carolina, Tennessee, Texas, and Virginia.
Republicans captured single seats in Florida, North Carolina, and
Texas, and two seats in both Tennessee and Virginia.
---------------------------------------------------------------------------
The political transformation of the South occurred slowly
in the early decades of the 20th century and gathered momentum
in the 1948 Presidential election. The Democratic Governor of
South Carolina, Strom Thurmond, ran an insurgent Presidential
campaign largely in opposition to the emerging Truman
administration position on civil rights as well as in support
of ``States' rights.'' As the Dixiecrat candidate,\43\ Thurmond
won all of the electoral votes in Alabama, Louisiana,
Mississippi, and South Carolina as well as 1 electoral vote in
Tennessee (39 in total).\44\ The reversal in political
dominance in the South accelerated as the civil rights movement
gained momentum and the Democrats' grip on the Solid South in
Presidential elections eroded in successive elections. With
Governor Ronald Reagan's election to the Presidency, the
defection of the Reagan Democrats in the South (and elsewhere)
heralded the end of a Democratic Party that had been anchored
there for more than a century. Democrats became the party that
was primarily bicoastal and urban, while the Republican Party
drifted away from its northeastern and midwestern roots and
became firmly planted in Southern and Western States.
---------------------------------------------------------------------------
\43\ Governor Thurmond ran as a Democrat in Alabama, Louisiana,
Mississippi, and South Carolina, and as the States' Rights Party
candidate in other States in the South.
\44\ Guide to U.S. Elections, ed. John L. Moore, 3d ed.
(Washington, DC: Congressional Quarterly, 1994), pp. 320-322, 399.
---------------------------------------------------------------------------
Campaign Money
Taking stock of a recently concluded election, a prominent
author concluded that money corrupted the political process.
Voters were forced to choose between two similar parties and
constant fundraising cheapened candidates and voters. ``In our
elections, which are the foundation of our whole governmental
structure, we treat offices as things to be paid for,'' he
lamented. Similar themes appear on editorial pages and in
popular debate today, but they are not new. In fact, the author
was economist and one-time New York mayoral candidate Henry
George. His essay appeared not in 2014 or even after the
Supreme Court's landmark Buckley v. Valeo decision in 1976, but
in 1883.\45\
---------------------------------------------------------------------------
\45\ Henry George, ``Money in Elections,'' The North American
Review, March 1883, p. 206. George's son, Henry George, Jr. was a U.S.
Representative from New York (1911-1915). See Biographical Directory of
the United States Congress, at http://bioguide.congress.gov/scripts/
biodisplay.pl?index=G000126.
---------------------------------------------------------------------------
George wrote at the beginning of the Progressive Era, a
period marked by major social and governmental changes that
emphasized electoral reform and transparency. Most notably,
making connections to campaign finance, politicians such as
Theodore Roosevelt raised an alarm about the growing gap
between the haves and have-nots in American society. Similar
themes appeared in congressional debate over campaign finance
bills in 1956, 1973, and 2014--just to name a few.\46\
---------------------------------------------------------------------------
\46\ In these cases, the debate concerned legislation proposing
public financing of congressional campaigns, but campaign finance
topics tend to include recurring themes. See R. Sam Garrett, ``Back to
the Future? The Quest for Public Financing of Congressional
Campaigns,'' in Public Financing in American Elections, ed. Costas
Panagopoulos (Philadelphia: Temple University Press, 2011), pp. 11-35.
On campaign finance legislative history generally, see, for example,
Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal
Campaign Finance Law (New York: Praeger, 1988); and Raymond J. La Raja,
Small Change: Money, Political Parties, and Campaign Finance Reform
(Ann Arbor, MI: University of Michigan Press, 2008).
---------------------------------------------------------------------------
Criticism of private money in politics has not been limited
to Presidential campaigns. In 1922, the Senate settled an
election contest between Henry Ford and Truman H. Newberry.\47\
Campaign spending featured prominently in the case, rooted in
the 1918 Michigan Senate race. After a long investigation, the
Senate seated Newberry, but ``condemn[ed]'' the $195,000 spent
on his primary campaign and determined that the amount was
``contrary to sound public policy [and] harmful to the honor
and dignity of the Senate.'' \48\ Recapping the episode a
decade later, Louise Overacker, one of the first scholars to
study campaign finance, observed: ``Current protests against
the use of money in the United States leave one with the
impression that we are facing an entirely new form of political
corruption. Such is far from the case.'' \49\
---------------------------------------------------------------------------
\47\ For a historical overview, see Paula Baker, Curbing Campaign
Cash: Henry Ford, Truman Newberry, and the Politics of Progressive
Reform (Lawrence, KS: University Press of Kansas, 2012); and Anne M.
Butler and Wendy Wolff, United States Senate Election, Expulsion and
Censure Cases 1793-1990 (Washington, DC: GPO, 1995), pp. 302-305.
\48\ ``Michigan Senatorial Election,'' Congressional Record, vol.
62, part 2 (January 12, 1922), p. 1116.
\49\ Louise Overacker, Money in Elections (New York: Macmillan,
1932), p. 4.
---------------------------------------------------------------------------
Indeed it was.\50\ Following kickback scandals during the
Civil War and even earlier, Congress began to regulate Federal
campaign finance in 1867 by protecting navy yard workers from
required political contributions and from being fired for their
political beliefs.\51\ Campaign finance regulation became more
engrained with the Pendleton Act in 1883.\52\ The legislation
is best known for establishing the civil service system, but,
in a nod to campaign finance, also barred the making of
political contributions in exchange for Federal jobs.
---------------------------------------------------------------------------
\50\ Although the Progressive Era marked the first time in which
Congress enacted major campaign finance legislation, some legislative
proposals and oversight predated the period. See, for example, Robert
E. Mutch, ``The First Federal Campaign Finance Bills,'' The Journal of
Policy History, vol. 14, no. 1 (2002), pp. 30-48. For additional
historical discussion of the evolution of campaign finance law and
policy, see Anthony Corrado et al., The New Campaign Finance Sourcebook
(Washington, DC: Brookings Institution Press, 2005), pp. 7-47. See
also, for example, Kurt Hohenstein, Coining Corruption: The Making of
the American Campaign Finance System (DeKalb, IL: Northern Illinois
University Press, 2007); Mutch, Campaigns, Congress, and Courts; and
Raymond J. La Raja, Small Change: Money, Political Parties, and
Campaign Finance Reform (Ann Arbor, MI: University of Michigan Press,
2008), pp. 43-80.
\51\ 39th Cong., 2d Sess. (March 2, 1867), p. 492.
\52\ 22 Stat. 403 (1883).
---------------------------------------------------------------------------
Congress first enacted major campaign finance limits in
1907, when the Tillman Act prohibited corporations and national
banks from making contributions in Federal elections.\53\
Congress extended the prohibition to unions in 1943 and
1947.\54\ Through the 1947 act, Congress also prohibited
corporations and unions from making expenditures to influence
Federal elections.\55\ Despite establishing initial reporting
requirements and later--invalidated spending limits in the
1910s and 1920s, modern campaign finance law and regulation
affecting congressional campaigns did not emerge until the
1970s.
---------------------------------------------------------------------------
\53\ 34 Stat. 864 (1907).
\54\ 57 Stat. 167 (1943); 61 Stat. 136 (1947).
\55\ This is the Taft-Hartley Act, also known as the Labor
Management Relations Act. The relevant expenditure prohibition (61
Stat. 159 (1947)) amended the 1925 Federal Corrupt Practices Act (43
Stat. 1074 (1925)).
---------------------------------------------------------------------------
First enacted in 1971 and substantially amended in 1974,
1976, and 1979, the Federal Election Campaign Act (FECA)
remains the foundation of the Nation's campaign finance law.
Most notably, FECA established modern contribution limits and
reporting requirements. Individuals were permitted to
contribute $1,000 per election to individual congressional and
Presidential candidates.\56\ Subsequent amendments to FECA
played a major role in shaping campaign finance policy as it is
understood today. After the 1974 amendments were enacted, the
first in a series of prominent legal challenges came before the
Supreme Court.\57\ In its landmark Buckley v. Valeo (1976)
ruling, the Court declared mandatory spending limits
unconstitutional (except for publicly financed Presidential
candidates) and invalidated the original appointment structure
for the Federal Election Commission (FEC).\58\
---------------------------------------------------------------------------
\56\ Congress did not raise the individual limit until 2002 when it
enacted the Bipartisan Campaign Reform Act (BCRA).
\57\ For additional information, see CRS Report RL30669, The
Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and
Its Supreme Court Progeny, by L. Paige Whitaker.
\58\ 424 U.S. 1 (1976).
---------------------------------------------------------------------------
Little in campaign finance policy or law changed for a
generation thereafter. Congress did not substantially revisit
campaign finance law until 2002, when it enacted the Bipartisan
Campaign Reform Act (BCRA). The Supreme Court also largely
maintained the status quo throughout the 1980s and 1990s, but
began actively revisiting campaign finance law after Congress
enacted BCRA. Still the Court did not significantly alter the
legal environment facing congressional campaigns until 2010,
when the Citizens United decision permitted corporations and
unions to spend their treasury funds advocating for election or
defeat of particular candidates.\59\
---------------------------------------------------------------------------
\59\ 130 S.Ct. 876 (2010).
---------------------------------------------------------------------------
The Cost of Congressional Elections Over Time
Perhaps no other area of congressional campaigns has
changed more in recent decades than the amount of money
required to run for office. Figure 1 below shows a conservative
summary of House and Senate campaign expenditures between the
1974 and 2012 election cycles. The figure includes only
candidate spending, only major-party candidates, and only those
who advanced to the general election. Even with these caveats
and when adjusting for inflation, the almost 40 years between
1974 and 2012 saw major increases in campaign spending. The
increase for both House and Senate campaigns was almost 2,000
percent (about 350 percent when adjusted for inflation).\60\
---------------------------------------------------------------------------
\60\ Information in this section is based on CRS calculations using
data in Norman J. Ornstein et al., Vital Statistics on Congress (2013),
Table 3-5, at http://www.brookings.edu/research/ reports/2013/07/vital-
statistics-congress-campaign-finance-mann-ornstein. Inflation-
adjustment calculations were made to May 2014 from data in U.S. Bureau
of Labor Statistics, CPI Detailed Report: Data for May 2014,
Washington, DC, May 2014, Table 24, at http://www.bls.gov/cpi/
cpid1405.pdf.
---------------------------------------------------------------------------
Costs for individual campaigns also increased rapidly. As
Table 1 below shows, the increase in expenditures for House and
Senate campaigns has consistently outpaced inflation. Average
(mean) winning House candidates in 2012 spent more than three
times as did their predecessors in 1986.\61\ Even when adjusted
for inflation, average expenditures more than doubled. Spending
in Senate races shows a similar trend.
---------------------------------------------------------------------------
\61\ FEC data on spending by winning campaigns are generally only
uniformly available since 1986, as shown in the table. A review of
previous data suggests that the trend dates to at least the mid-1970s,
when FECA first mandated systematic reporting.
---------------------------------------------------------------------------
As high as candidate-campaign spending is, it is important
to note that it represents only a relatively small component of
total spending affecting House and Senate campaigns. The data
in the table do not reflect spending by parties, political
action committees, or ``outside groups.'' Also important,
although virtually all fundraising and spending surrounding
congressional campaigns is controversial, it is not universally
criticized. Particularly in the post-Citizens United
environment, some observers argue that American politics needs
more money, not less. Opponents strongly disagree. As the next
section discusses, whatever one's position on ``outside money''
in congressional elections, this noncandidate activity has been
some of the most consequential and controversial funding in
American elections.
Figure 1. Total House and Senate Campaign Expenditures, 1974-2012
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: CRS calculations using data in Norman J. Ornstein et
al., Vital Statistics on Congress (2013), Table 3-5, at http://
www.brookings.edu/research/reports/2013/07/vital-statistics-congress-
campaign-finance-mann-ornstein. Inflation-adjustment calculations were
made to May 2014 from data in U.S. Bureau of Labor Statistics, CPI
Detailed Report: Data for May 2014, Washington, DC, May 2014, Table 24,
at http://www.bls.gov/cpi/cpid1405.pdf.
The Struggle to Regulate ``Outside Money''
FECA supporters hoped that the new law would limit the
amounts of money surrounding campaigns, including House and
Senate races, and reduce the risk of potential corruption by
more thoroughly documenting campaign transactions. Almost
immediately, parts of the regulatory structure FECA established
faced serious challenges. In particular, once the Buckley
decision drew a distinction between contributions and
expenditures, Congress' policy options for capping the amount
spent in elections or who could participate were substantially
limited. Specifically, the Court found that Congress could cap
individual contributions because they presented a sufficient
risk of corruption. Expenditures generally could not be
limited, provided that they were independent from candidates,
although corporations, unions, and national banks remained
prohibited from using their treasury funds to advocate for or
against candidates (a prohibition later overturned by Citizens
United). So began a heated debate that continues today about
whether independent spending in campaigns is protected
political speech or distorts the democratic process. Even as
that debate unfolded, it quickly became clear that Buckley
opened the door to ``outside'' spending not envisioned when
Congress enacted FECA. The kind of money now permitted had
changed from the pre-Buckley days, but the debate the money
fueled was not all that different from concerns first raised
during the Progressive Era.
Table 1. Mean Expenditures for Winning House and Senate Campaigns, 1986-2012
----------------------------------------------------------------------------------------------------------------
House Senate
winners House winners winners Senate winners
Election cycle current constant current constant dollars
dollars dollars dollars
----------------------------------------------------------------------------------------------------------------
1986.............................................. $359,577 $780,505.19 $3,067,559 $6,658,506.26
1988.............................................. 400,386 805,171.85 3,746,225 7,533,617.31
1990.............................................. 423,245 770,390.10 3,298,324 6,003,605.81
1992.............................................. 556,475 943,588.04 3,353,115 5,685,716.74
1994.............................................. 541,121 868,641.61 4,488,195 7,204,734.08
1996.............................................. 686,198 1,040,449.36 3,921,653 5,946,215.73
1998.............................................. 677,807 989,265.55 4,655,806 6,795,191.70
2000.............................................. 845,907 1,168,648.73 7,198,423 9,944,859.36
2002.............................................. 911,644 1,205,559.39 3,728,644 4,930,764.03
2004.............................................. 1,038,391 1,307,745.88 7,183,825 9,047,284.11
2006.............................................. 1,259,791 1,486,628.37 8,835,416 10,426,316.80
2008.............................................. 1,362,239 1,505,212.15 7,500,052 8,287,215.33
2010.............................................. 1,434,760 1,565,329.11 8,993,945 9,812,431.28
2012.............................................. 1,596,953 1,654,725.81 10,351,556 10,726,043.24
----------------------------------------------------------------------------------------------------------------
Source: Norman J. Ornstein et al., Vital Statistics on Congress (2013), Table 3-1, at http://www.brookings.edu/
research/reports/2013/07/vital-statistics-congress-campaign-finance-mann-ornstein. CRS adjusted current
dollars to constant dollars (May 2014) using data from U.S. Bureau of Labor Statistics, CPI Detailed Report:
Data for May 2014, Washington, DC, May 2014, Table 24, at http://www.bls.gov/cpi/cpid1405.pdf.
Notes: The data reflect only candidates who competed in the general election. The Senate mean for 2000 is
unusually large because of heavy spending in the New Jersey and New York Senate races. Without these two
outlier cases, the mean would be approximately $4.7 million in current dollars. See the cited source for
additional notes.
Although ``outside money'' is a commonly used term in
campaign finance circles, it is a term of art without specific
meaning. Generally, it implies money spent by those other than
candidate campaigns, and perhaps by political parties. Such
spending can take many forms and can be regulated in different
ways. This report does not intend to address them all.\62\
Instead, it discusses selected developments that were and are
particularly consequential for House and Senate campaigns. The
next sections first explore PACs as a challenge to the campaign
environment Congress sought to create with FECA. Discussions of
major legal changes and subsequent spending from super PACs and
other groups in the 2000s follow.
---------------------------------------------------------------------------
\62\ For additional discussion, see CRS Report R41542, The State of
Campaign Finance Policy: Recent Developments and Issues for Congress,
by R. Sam Garrett, The State of Campaign Finance Policy: Recent
Developments and Issues for Congress, by R. Sam Garrett; and CRS Report
R43719, Campaign Finance: Constitutionality of Limits on Contributions
and Expenditures, by L. Paige Whitaker.
---------------------------------------------------------------------------
political action committees
Political action committees (PACs) permitted corporations,
unions, and other groups an indirect route for making campaign
contributions and independent expenditures calling for election
or defeat of particular candidates. Although PACs could not use
their treasury funds to support most PAC operations,
businesses, unions, or other groups could sponsor PACs--to
which their employees or members could make voluntary
contributions.
Many observers saw PACs as one of the first major threats
to the effectiveness of individual contribution limits that
Congress had enacted in FECA. Unions engaged in PAC-like
activity as early as the 1950s, but the groups did not become
an established part of the congressional elections landscape
until later. PACs as they are known today (although not
including super PACs) emerged in the mid-1970s after an FEC
advisory opinion permitted the Sun Oil Corporation to establish
a separate fund to make expenditures and contributions despite
FECA's prohibition on spending corporate treasury funds in U.S.
elections.\63\ Congress codified the PAC model in the 1976 and
1979 FECA amendments.
---------------------------------------------------------------------------
\63\ The Sun Oil advisory opinion (AO) is 1975-23 (November 24,
1975). For additional discussion of PAC development, see, for example,
David B. Magleby and Candice J. Nelson, The Money Chase: Congressional
Campaign Finance Reform (Washington, DC: Brookings Institution Press,
1990); and Mutch, Campaigns, Congress, and Courts.
---------------------------------------------------------------------------
Throughout the 1980s, PAC spending was controversial, as
many believed the committees represented a loophole in the ban
on corporate and union treasury spending, even though PAC funds
must come from voluntary contributions rather than corporate or
union treasury funds. PACs also were the major vehicle by which
funds often derided as ``special interest'' money flowed into
congressional elections following FECA's enactment. These
developments launched a decades-long debate, which continues to
this day, about whether PACs were the product of genuine
``grassroots'' advocacy or thinly veiled corporate and union
attempts to influence elections. Those favoring and opposing
PACs also argued over whether the groups distorted the policy
process by pressuring lawmakers to support ``special
interests'' or whether they filled gaps left by allegedly
declining political parties and provided an outlet for diverse
interests.\64\
---------------------------------------------------------------------------
\64\ See, for example, archived CRS Report 84-87 GOV, Political
Action Committees: Their Evolution, Growth, and Implications for the
Political System, by Joseph E. Cantor.
---------------------------------------------------------------------------
Despite the controversy surrounding PACs, they quickly
became a reality of congressional elections. PACs were
particularly generous to incumbents. During the 1980s, House
and Senate incumbents relied on PACs for one-quarter to one-
half of their campaign contributions.\65\ The number of
registered PACs more than doubled between 1976 and 1984, from
about 1,150 to more than 4,000.\66\ Still, PACs did not grow
exponentially. To use an analogy, once PACs took off, they
leveled off. As Figure 2 below shows, the number of corporate
and labor PACs has remained fairly stable from the beginning,
and especially after 1984. A generation later, in 2010, the
total number of PACs increased when super PACs emerged
following the Supreme Court's ruling in Citizens United v.
Federal Election Commission and the lower-court case SpeechNow
(discussed below). The traditional PACs that developed in the
1970s and 1980s, however, remained stable. In this sense, there
is no doubt that PACs changed congressional elections. But,
once the change occurred, PACs became standard fare for those
hoping to influence congressional elections, controversy
notwithstanding. Other forms of outside money have similarly
become accepted, if controversial, mainstays in congressional
elections.
---------------------------------------------------------------------------
\65\ David B. Magleby and Candice J. Nelson, The Money Chase:
Congressional Campaign Finance Reform (Washington: Brookings
Institution Press, 1990), pp. 82-83.
\66\ Data in this section come from CRS analysis of data in Federal
Election Commission, ``PAC Count--1974 to Present,'' press release,
July 2014, at http://www.fec.gov/press/summaries/2011/
2011paccount.shtml.
---------------------------------------------------------------------------
Figure 2. Number of Federal Political Action Committees, 1976-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: CRS figure based on analysis of data in Federal
Election Commission, ``PAC Count--1974 to Present,'' press release,
July 2014, at http://www.fec.gov/press/summaries/2011/
2011paccount.shtml.
Notes: The FEC data cited above include additional PAC types not
shown in the figure, although they are reflected in the totals.
the next generation of independent spending: the 1990s and beyond
By the 1990s, attention began to shift to other perceived
loopholes in FECA. Two issues--soft money and issue advocacy
(issue advertising)--were especially prominent.\67\ ``Soft
money'' is a term of art referring to funds generally perceived
to influence elections but not regulated by campaign finance
law. Although generally banned in Federal elections today (as a
result of BCRA, discussed below), soft money came principally
in the form of large contributions from otherwise prohibited
sources, and went to party committees for ``party-building''
activities that indirectly supported elections. Party
facilities, get-out-the-vote (GOTV) campaigns, and other
efforts were all fueled by hundreds of millions of dollars in
soft money during the 1980s and 1990s. Because these funds were
allocated to State parties or non-Federal accounts of national
parties, with consent from the FEC, they were largely
unregulated for Federal purposes, even though they played an
increasingly prominent role in the infrastructure that tacitly
surrounded House and Senate campaigns. Parties typically found
raising soft money easier than ``hard money,'' which was
subject to limits on sources and amounts.
---------------------------------------------------------------------------
\67\ Parts of this section are adapted from material in CRS Report
R41542, The State of Campaign Finance Policy: Recent Developments and
Issues for Congress, by R. Sam Garrett; and CRS Report R42042, Super
PACs in Federal Elections: Overview and Issues for Congress, by R. Sam
Garrett.
---------------------------------------------------------------------------
Parties also found ways to use soft money to indirectly
bolster their candidates.\68\ In particular, during the 1990s,
parties found a new outlet for soft money: ``issue advocacy.''
These advertisements, typically aired on radio and television,
traditionally fell outside FECA regulation because they praised
or criticized a Federal candidate--often by urging voters to
contact the candidate--but did not explicitly call for election
or defeat of the candidate. By 2002, the last election cycle in
which soft money was permitted, Democratic and Republican Party
committees raised almost $500 million in soft money. That
amount was almost double what the two parties had raised just 4
years earlier.\69\ In fact, Democrats--who typically enjoyed a
soft-money advantage over Republicans--raised more soft money
than hard.\70\
---------------------------------------------------------------------------
\68\ For an overview, particularly during the final election cycle
in which soft money was permitted, see David B. Magleby and Nicole
Carlisle Squires, ``Party Money in the 2002 Congressional Elections,''
in The Last Hurrah: Soft Money and Issue Advocacy in the 2002
Congressional Elections, ed. David B. Magleby and J. Quin Monson
(Washington: Brookings Institution Press), pp. 36-62.
\69\ Federal Election Commission, ``Party Committees Raise More
Than $1 Billion in 2001-2002,'' press release, March 20, 2003, at
http://fec.gov/press/press2003/20030320party/20030103party.html.
\70\ Democratic Party committees raised $246.1 million in soft
money compared with $217.2 million in hard money. See ibid.
---------------------------------------------------------------------------
In response to these and other developments, Congress
enacted major campaign finance legislation for the first time
in a generation.\71\ Among other provisions, BCRA, enacted in
2002, banned national parties, Federal candidates, and
officeholders from raising soft money in Federal elections;
increased most contribution limits; and placed additional
restrictions on preelection issue advocacy.\72\ Specifically,
the act's electioneering communications provision prohibited
corporations and unions from using their treasury funds to air
broadcast ads referring to clearly identified Federal
candidates within 60 days of a general election or 30 days of a
primary election or caucus. As a consequence, if corporations
or unions wanted to engage in communications that mentioned
Federal candidates during preelection periods, they had to do
so through PACs, which were subject to limits on contribution
sources and amounts.
---------------------------------------------------------------------------
\71\ Congress approved limited public financing legislation in
1992, but President George H.W. Bush vetoed the measure. For additional
discussion, see CRS Report RL33814, Public Financing of Congressional
Campaigns: Overview and Analysis, by R. Sam Garrett.
\72\ BCRA, also known as ``McCain-Feingold'' for its principal
Senate sponsors, John McCain and Russell Feingold, is P.L. 107-155; 116
Stat. 81. BCRA (2002) amended FECA. Effective September 2014, FECA is
codified at 52 U.S.C. 30101 et seq. (previously at 2 U.S.C. 431 et
seq.).
---------------------------------------------------------------------------
Opponents of the legislation, including Senator Mitch
McConnell, immediately filed suit, arguing that BCRA's
provisions inhibited political speech. They also raised
concerns that BCRA would inhibit parties by tacitly encouraging
money to flow away from the old channel of soft money and
toward arguably less regulated sources, such as tax-exempt
organizations. Surprising many observers, the Supreme Court
upheld most of BCRA in McConnell v. FEC (2003).\73\ Over time,
though, the Court held aspects of BCRA unconstitutional as
applied to specific circumstances. These included a 2008 ruling
related to additional fundraising permitted for congressional
candidates facing self-financed opponents and a 2007 ruling on
the electioneering communication provision's restrictions on
advertising by a 501(c)(4) advocacy organization.\74\
---------------------------------------------------------------------------
\73\ 540 U.S. 93 (2003). For additional discussion, see CRS Report
RL32245, Campaign Finance Law: A Legal Analysis of the Supreme Court
Ruling in McConnell v. FEC, by L. Paige Whitaker; and CRS Report
RL30669, The Constitutionality of Campaign Finance Regulation: Buckley
v. Valeo and Its Supreme Court Progeny, by L. Paige Whitaker.
\74\ For additional discussion, see CRS Report RS22920, Campaign
Finance Law and the Constitutionality of the ``Millionaire's
Amendment'': An Analysis of Davis v. Federal Election Commission, by L.
Paige Whitaker; CRS Report RS22687, The Constitutionality of Regulating
Political Advertisements: An Analysis of Federal Election Commission v.
Wisconsin Right to Life, Inc., by L. Paige Whitaker; and CRS Report
RL34324, Campaign Finance: Legislative Developments and Policy Issues
in the 110th Congress, by R. Sam Garrett.
---------------------------------------------------------------------------
The most significant blow to BCRA, and a major change in
Federal campaign finance law, occurred in 2010. In Citizens
United v. Federal Election Commission, the Court lifted the
bans on corporate and union treasury expenditures discussed
above and enacted in 1947.\75\ Citizens United also invalidated
the hard-money requirement in BCRA's electioneering
communication provision. Consequently, for the first time in
modern history, corporations and unions were free to use their
own funds to expressly call for election or defeat of Federal
candidates. Another major change in the campaign finance
landscape followed a few months after Citizens United. In
SpeechNow.org v. Federal Election Commission, the U.S. Court of
Appeals for the District of Columbia held that contributions to
PACs that make only independent expenditures cannot be
limited--a development that led to formation of ``super PACs.''
\76\ Coupled with increasing use of tax-exempt 501(c)(4) social
welfare organizations and 501(c)(6) trade associations,
regulated primarily under tax law rather than election law,
individuals, unions, and corporations now had major new outlets
to affect Federal elections. Reflecting concerns that had been
present during the Progressive Era, much of the debate
surrounding super PACs and 501(c) organizations has concerned
unlimited contributions to the groups and, in some cases,
limited donor disclosure.\77\
---------------------------------------------------------------------------
\75\ Citizens United is 130 S. Ct. 876 (2010). For a legal analysis
of the case, see CRS Report R41045, The Constitutionality of Regulating
Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in
Citizens United v. FEC, by L. Paige Whitaker.
\76\ For additional discussion of SpeechNow, see CRS Report
RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign
Finance and Tax Laws, by L. Paige Whitaker and Erika K. Lunder. On
super PACs, see CRS Report R42042, Super PACs in Federal Elections:
Overview and Issues for Congress, by R. Sam Garrett.
\77\ For additional discussion of donor disclosure and the
relationships between super PACs and 501(c) organizations, see CRS
Report R42042, Super PACs in Federal Elections: Overview and Issues for
Congress, by R. Sam Garrett.
---------------------------------------------------------------------------
In general, few corporations and unions have chosen to make
independent expenditures using their treasury funds. Super
PACs, 501(c) organizations, and individuals, however, have
chosen to spend freely on House and Senate contests. In the
roughly 10 months in which super PAC independent spending was
permitted during the 2010 election cycle, super PACs spent more
than $90 million, most of which went toward advocating the
election or defeat of House and Senate candidates. By 2012,
super PACs spent almost $800 million. Although much of that
spending went toward the Presidential race, super PACs spent as
much as $15 million on individual Senate contests.\78\
Altogether, parties, PACs, individuals, and other groups spent
$1.25 billion on independent expenditures in all Federal races
in 2012. House and Senate candidates, by comparison, spent not
much more--about $1.8 billion.\79\
---------------------------------------------------------------------------
\78\ This information appears in CRS Report R42042, Super PACs in
Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
\79\ These data come from FEC statistical summaries for the 2012
election cycle at http://fec.gov/press/
campaign_finance_statistics.shtml.
---------------------------------------------------------------------------
Change and Continuity in Congressional Campaign Finance
The amounts of money raised and spent in congressional
campaigns have changed dramatically. Fundamentally, though,
campaign funds are used to buy the same thing they always have:
efforts to win more votes than an opponent on Election Day. In
a briefing ahead of the 2014 elections, for example, the
national Republican Party committees and their State
legislative and gubernatorial counterparts announced plans to
spend hundreds of millions of dollars in the closing weeks of
the election cycle. Like Democrats, the GOP planned to target
its spending on voter-contact efforts powered by technological
innovations such as smartphones and real-time data
analysis.\80\ The methods of voter contact, number of voters
contacted, and costs might have been new, but the goals were
not. Tens of thousands of precinct captains were key players in
collecting and acting on the expensive, technical data--just as
they had been for more than a century.
---------------------------------------------------------------------------
\80\ Jennifer Kerns, ``Republicans Are Ready for the 2014
Midterms,'' The Washington Times, July 18, 2014, p. B3.
---------------------------------------------------------------------------
Then, as now, the media and other observers have
nonetheless criticized fundraising practices and campaign
finance policy positions among members of both parties. One of
the most troubling consequences of outside money, for some
observers, has been the loss of candidate control over the
campaign environment. PACs in the 1970s, soft money and issue
advocacy in the 1980s and 1990s, and express advocacy by
501(c)s and super PACs in the 2000s, all limited candidate
influence over the campaign environment by introducing new and,
sometimes overwhelming, money and political messages. Although
the specifics differ from those of the 1950s, observers
continue to worry about the future of political parties. As
funding by nonparty and noncandidate forces increases, recent
media accounts and political professionals suggest that
candidates might become--or already are--periphery players in
their own campaigns.\81\
---------------------------------------------------------------------------
\81\ See, for example, Ashley Parker, ``Outside Money Drives a
Deluge of Political Ads,'' The New York Times, July 27, 2014, p. A1,
New York edition.
---------------------------------------------------------------------------
As the preceding discussion shows, the rules surrounding
campaign finance regulation have changed, and in some cases, so
have the players. Nonetheless, the same major elements of the
policy debate remain in campaign finance today as were in place
a century ago. Who should be permitted to raise and spend money
in House and Senate campaigns? Where should that money come
from? How much information about donors should be disclosed and
how often? Should spending be treated differently from
contributions? Most of these questions are just as relevant
today than they were during the early 1900s, if not before.
Campaign Outcomes
One way in which congressional elections today are
different from the past can be seen in the recent tendency for
the outcome to result in divided, rather than unified,
government. One party or the other was more likely to control
simultaneously the House, Senate, and White House in the years
before 1950 than since. Between 1900 and 1950, both political
branches were under one party's control 80 percent of the time,
compared to 41 percent since 1950.\82\ The last time one party
controlled both Chambers and the White House for an entire
Presidential term was during the Carter administration, during
the 95th and 96th Congresses.
---------------------------------------------------------------------------
\82\ Harold W. Stanley and Richard G. Niemi, Vital Statistics on
American Politics, 2013-2014 (Thousand Oaks, CA: CQ Press, 2013), pp.
36-37.
---------------------------------------------------------------------------
Another difference is a decline in the number of
congressional districts in which the parties are competitive.
Redistricting trends in recent decades have meant that, when
some States draw new congressional district boundaries after a
decennial census, a cooperative effort to protect incumbents
and maintain the status quo has meant that the number of truly
competitive districts has declined.\83\ For example:
---------------------------------------------------------------------------
\83\ See CRS Report R42831, Congressional Redistricting: An
Overview, by Royce Crocker.
In 1992, there were 103 members of the House of
Representatives elected from what might be called swing
districts: those in which the margin in the presidential race
was within five percentage points of the national result. But
based on an analysis of this year's presidential returns, I
estimate that there are only 35 such Congressional districts
remaining, barely a third of the total 20 years ago.\84\
---------------------------------------------------------------------------
\84\ Nate Silver, ``As Swing Districts Dwindle, Can a Divided House
Stand?'' The New York Times, December 27, 2012.
For the 2014 election, the Cook Political Report estimated
that 365 House seats were ``solid'' for either Democrats or
Republicans, while another 50 were ``likely'' wins for one
party or the other because one party had an advantage in the
district. As a result, the number of races that were rated
competitive in the summer before the election was 20.\85\
---------------------------------------------------------------------------
\85\ ``2014 House Race Ratings for August 8, 2014,'' The Cook
Political Report, August 8, 2014.
---------------------------------------------------------------------------
The number of seats gained in the House by one party or the
other has been generally lower in recent decades. As an
approximate measure of political volatility, there was greater
turnover in congressional seats in the first half of the 20th
century than today, despite the widely held impression that
political polarization is greater today than in the past.\86\
Using the mid-century mark as an arbitrary dividing line,
between 1950 and 2012 (62 years), there were 7 elections in
which one party or the other gained at least 34 seats
(Republicans gained 34 seats in the ``Reagan Revolution'' that
began in 1980, which resulted in a 243-192 partisan lineup in
favor of the Democrats). Table 2 (below) provides a list of 11
elections between 1900 and 1950 (50 years) in which one party
gained at least 34 seats, as well as the 7 corresponding
elections between 1952 and 2012.\87\ The comparative number of
seats gained was also higher before 1950: 43-93 in the earlier
period and 34-64 between 1952 and 2012.
---------------------------------------------------------------------------
\86\ Some observers have argued that the deep partisan divide often
referenced in the media is inaccurate; see, for example, Morris P.
Fiorina, with Samuel J. Abrams, and Jeremy Pope, Culture War? The Myth
of a Polarized America (New York, Pearson Longman, 2006).
\87\ Stanley and Niemi, Vital Statistics on American Politics, pp.
27-31.
---------------------------------------------------------------------------
The reelection rate of incumbent Members of the House has
remained fairly steady throughout the last five decades. In
1960, 94 percent of House incumbents and 97 percent of Senate
incumbents were reelected. In 2012, 93 percent of House
incumbents and 95 percent of Senate incumbents were
reelected.\88\ The House incumbent reelection rate has dropped
below 90 percent three times since 1960, in 1964, 1974, and
2010. Senate incumbent reelection rates have been more
volatile, dropping at times to 64 percent (in 1976 and 1980),
but in the 80 to 99 percent range in 20 of 27 elections since
1960.
---------------------------------------------------------------------------
\88\ Ibid., pp. 45-47.
Table 2. High-Turnover Elections in the U.S. House, 1900-1950 and 1952-
2012
------------------------------------------------------------------------
Seats
Year Party gained
------------------------------------------------------------------------
1900-1950
1904............................. Republicans............. 43
1910............................. Democrats............... 56
1912............................. Democrats............... 62
1914............................. Republicans............. 66
1920............................. Republicans............. 63
1922............................. Democrats............... 75
1930............................. Democrats............... 53
1932............................. Democrats............... 93
1938............................. Republicans............. 80
1946............................. Republicans............. 56
1948............................. Democrats............... 75
1952-2012
1958............................. Democrats............... 49
1964............................. Democrats............... 37
1966............................. Republicans............. 47
1974............................. Democrats............... 48
1980............................. Republicans............. 34
1994............................. Republicans............. 54
2010............................. Republicans............. 64
------------------------------------------------------------------------
Source: Harold W. Stanley and Richard G. Niemi, Vital Statistics on
American Politics, 2013-2014 (Thousand Oaks, CA: CQ Press, 2013), pp.
27-31.
Despite the ability to identify potential voters using
sophisticated data collection and analysis, persuade them
through focus group-tested campaign advertising and messaging,
and drive them to the polls with get-out-the-vote plans that
unfold with military precision, voter turnout has remained
relatively constant in the modern campaign era. In the 1960
Presidential election, voter turnout was 63.8 percent of the
voting-eligible population,\89\ the highest level of
participation in the modern era. Beginning in 1972--the 1st
year in which 18- to 20-year-olds were eligible to
participate--turnout declined to 56.2 percent and didn't exceed
60 percent again until 2004, when it was 60.1 percent. In the
last 2 elections, it was 61.6 percent (the 4th highest in the
14 elections of the modern era) and 58.2 percent in 2012. (See
Figure 3.)
---------------------------------------------------------------------------
\89\ Stanley and Niemi, Vital Statistics on American Politics, pp.
4-5.
---------------------------------------------------------------------------
Turnout in congressional elections, in somewhat similar
fashion, began to decline and has recently increased again
slightly. In 1966 it was 48.7 percent and exceeded 40 percent
twice in the next five elections, when it was 47.3 percent in
1970 and 42.1 percent in 1982. In recent elections it was: 39.5
percent in 2002, 40.4 percent in 2006, and 41 percent in 2010.
(See Figure 4.)
Figure 3. Voter Turnout in Presidential Elections, 1960-2012
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: CRS figure based on data appearing in Harold W. Stanley
and Richard G. Niemi, Vital Statistics on American Politics, 2013-2014
(Thousand Oaks, CA: CQ Press, 2013), pp. 4-5.
Figure 4. Voter Turnout in Congressional Elections, 1962-2010
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: CRS figure based on data appearing in Harold W. Stanley
and Richard G. Niemi, Vital Statistics on American Politics, 2013-2014
(Thousand Oaks, CA: CQ Press, 2013), pp. 4-5.
Campaigns and Voters
There is a natural assumption that the present is modern
and advanced and the past is outdated and obsolete. New
concepts of communication, technology, and media replace old
ways and the result is not just improved, but usually
noticeably superior. In the realm of election campaigns, the
term ``modern'' has been used for decades, as the ``modern
campaign'' era arrived unofficially with the televised Nixon-
Kennedy debates in the 1960 Presidential election. And yet,
years before that contest, the hallmarks of the ``modern''
campaign were already present, at least in Texas, as described
here:
Scientific polling, techniques of organization and of media
manipulation--of the use of advertising firms, public relations
specialists, media experts from outside the political
apparatus, of the use of electronic media . . . not only for
speeches but for advertising to influence voters--the mature
flowering of all these devices dates, in Texas and the
Southwest, from Lyndon Johnson's 1948 [Senate] campaign.\90\
---------------------------------------------------------------------------
\90\ Robert A. Caro, The Years of Lyndon Johnson: Means of Ascent
(New York: Alfred A. Knopf, 1990), p. xxxiii.
The seeming sophistication of the Johnson campaign, or at
least the effectiveness of the technology employed in it, may
have been overstated.\91\ Even today, elections are not likely
to be won on Twitter or Facebook, valuable as these and other
social media might be for fundraising and reaching certain
segments of the population via the Internet. New campaign tools
and technologies tend to be developed over time alongside
traditional methods, such as phone calls, door-to-door
canvassing, and campaign literature and messaging. For example,
the much-praised Obama reelection team ``had more than 100
operatives working with their data to allow them to make more
informed decisions. Still, by their own admission, they largely
operated by the seat of their pants when it came to crunching,
honing, and optimizing digital advertising.'' \92\ Campaigns
rely on a field operation to identify and turn out voters, much
as they always have. As one campaign consultant who has worked
for State and Federal candidates observed:
---------------------------------------------------------------------------
\91\ See Bruce E. Altschuler, ``Lyndon Johnson: Campaign
Innovator?,'' PS: Political Science & Politics, vol. 24, no. 1 (March
1991), pp. 42-44, who suggested that the purported sophistication of
the Johnson campaign was inaccurate.
\92\ Brian Donahue, ``The Software Upgrade Election,'' Campaigns &
Elections, November/December 2013, p. 45.
What's fascinating is that while technology has changed
since 1789, campaigns really haven't . . . . Turn out your
base, target potential crossover votes with a compelling
message, build coalitions, highlight your opponent's
weaknesses.\93\
---------------------------------------------------------------------------
\93\ John Bicknell, ``Over Lincoln's Shoulder: The five ex-
presidents who badgered the man trying to save their country,'' Roll
Call, June 17, 2014.
Making contact with voters is vital, whether by phone,
door-to-door canvassing, or with literature, email, or new
---------------------------------------------------------------------------
media. A recent book on campaigning noted:
Everything we know from basically 15 years of field
experiments shows that high-quality, face-to-face contacts for
a volunteer living in the same community as the voter is the
best way to turn somebody out . . . .\94\
---------------------------------------------------------------------------
\94\ Mara Liasson, Democrats Count on the Fine Art of Field
Operations, National Public Radio, March 24, 2014.
Consequently, campaigns continue to invest in time-honored,
low-tech methods of voter contact. As if to underscore the
point, the gubernatorial campaign of Republican-turned-Democrat
Charlie Crist boasted to The Washington Post in August 2014
that ``its volunteers have already knocked on 700,000 Florida
doors--far surpassing the 200,000 that Romney's campaign had
reached by this point in the 2012 election.'' \95\ Despite
ever-increasing sophistication in campaign techniques to target
and persuade voters, elections are, as they have always been,
somewhat unpredictable:
---------------------------------------------------------------------------
\95\ Karen Tumulty, ``Charlie Crist, Rick Scott battle for every
Florida vote,'' The Washington Post, August 25, 2014.
The people who explain politics for a living--the
politicians themselves, their advisers, the media who cover
them--love to reach tidy conclusions . . . . Elections are
decided by charismatic personalities, strategic maneuvers, the
power of rhetoric, the zeitgeist of the political moment. The
explainers cloak themselves in the loose-fitting theories
because they offer a narrative comfort, unlike the more honest
acknowledgement that elections hinge on the motivations of
millions of individual beings and their messy, illogical, often
unknowable psychologies.\96\
---------------------------------------------------------------------------
\96\ Sasha Issenberg, The Victory Lab: The Secret Science of
Winning Campaigns (New York: Broadway Books, 2012), p. 3.
In an age when data collection is unrelenting and
expanding, and campaign technologies and social media are
changing with each election cycle, it may be useful to recall
that the art of campaigning is, after all, simply an effort to
persuade voters one by one.
Conclusion
This report has suggested that fundamental aspects of
congressional elections remain largely unchanged from a century
ago. Some notable changes must nonetheless be acknowledged.
Even where there has been notable change, the roots of major
elements of modern congressional elections rest firmly in
entrenched political practices. The themes that have organized
the discussion reveal both consistency and change. Overall,
though, House and Senate campaigns remain much as they always
were. Factors such as immigration, migration within the United
States, and enactment of modern voting laws have substantially
changed congressional campaigns. Despite changes in techniques
and technology, however, campaigns remain about connecting with
voters and asking for their support. Campaign finance
represents one of the greatest areas of change in the past
century. Some forms of independent spending that are now common
were rare or nonexistent in previous decades. Amounts of money
in campaigns overall are up significantly with no sign of
decline. Despite these changes in the amounts and sources of
money, however, major issues in campaign finance policy--such
as who should be permitted to influence elections, how, and
when--remain constant. Electoral outcomes generally are more
stable today than they were before 1950. At the same time,
incumbents are overwhelmingly reelected. With respect to voter
interest in elections, turnout has remained relatively stable
for decades.
To return to the analogy of watching a baseball game today
compared with one in 1914, the equipment and environment have
changed. Newly introduced instant replay provides more
technical accuracy, just as computerized polling and data
analysis permits microtargeting of individual communities or
voters. Still, games are won and lost with balls, strikes,
hits, and runs. Campaigning still depends on getting voters to
the polls and convincing them to cast ballots one way or
another. No amount of money, from candidates, parties, or
outside groups, can substitute for good campaign management and
appealing candidates. Congressional elections might be less
popular than the national pastime, but they are no less
enduring.
Understanding Congressional Approval: Public Opinion from 1974 to 2014
Jessica C. Gerrity
Section Research Manager
----------
The aggregate findings in this report suggest that
Congress, the institution, and the individuals who
compose it, are far from popular. Yet, Congress may not
be directly responsible for some of the factors that
influence the public's assessment of the legislative
branch. Regardless, to combat the negative effects of
the public's low regard for Congress and government
generally, whether a result of its own actions or
exogenous factors like the economy or international and
national events, Congress may wish to consider ways to
encourage the public to learn more about the
legislative branch and the legislative process,
designate individuals to speak on behalf of the
institution, and otherwise improve communications with
the public.
Introduction
According to a September 8, 2014, Gallup Poll release, just
14 percent of the public approved of the job Congress was
doing. This is up from the 9 percent mark set in November 2013.
That Congress, designed to be the branch of government most
responsive to public opinion, received such low marks from the
public and routinely serves as discussion fodder for
journalists and scholars, is not surprising, given Americans'
propensity to skepticism about politics.\1\ Yet, identifying
exactly why the public's marks for Congress periodically reach
such low points, such as is currently the case, let alone
devising solutions to address potential problems, is a
challenge. Congress is the branch of government directly
responsible for lawmaking, and many Members of Congress are
reelected in uncompetitive elections. Yet, more focused
research suggests that Americans have a love/hate relationship
with the processes that the Nation's Founders believed would
protect democracy--compromise, debate, and bargaining.\2\
---------------------------------------------------------------------------
\1\ John R. Hibbing and Elizabeth Theiss-Morse, ``Introduction,
Studying the American People's Attitudes Toward Government,'' in What
Is It About Government that Americans Dislike, ed. John R. Hibbing and
Elizabeth Theiss-Morse (Cambridge, United Kingdom: Cambridge University
Press, 2001), pp. 1-7; also, see at http://www.publicpolling.com/main/
2013/01/congress-less-popular-than-cockroaches-traffic-jams.html.
\2\ See Mark D. Ramirez, ``The Dynamics of Partisan Conflict on
Congressional Approval,'' The American Journal of Political Science,
vol. 53, no. 3 (July 2009), pp. 629, 681-694; on the concept and
meanings of ``compromise,'' see Alin Fumurescu, Compromise, A Political
and Philosophical History (Cambridge, United Kingdom: Cambridge
University Press, 2013), pp. 1-6, passim.
---------------------------------------------------------------------------
Low approval of Congress may or may not be here to stay.
Aggregated polling data over the past 40 years suggests that
approval could rebound from its current nadir. Regardless of
how favorable or unfavorable the public's evaluation of the
legislative branch is at a given time, Congress, unlike the
President, is ill equipped to respond to the public's
discontent. While a President may also suffer from poor marks
from the public, the President typically enjoys a healthy
favorable margin over the legislative branch. A June 12, 2014,
Gallup Poll found that 52 percent of the public viewed
President Obama unfavorably. While giving him a net favorable
rating of ^5 percent (47 percent have a favorable rating), his
lowest to date, defenders of Congress would find this approval
rating enviable.\3\
---------------------------------------------------------------------------
\3\ Jeffrey M. Jones, ``Americans' Ratings of President Obama's
Image at New Lows,'' The Gallup Poll, June 12, 2014, at http://
www.gallup.com/poll/171473/americans-ratings-president-obama-image-new-
lows.aspx.
---------------------------------------------------------------------------
The President, armed with a press secretary, press office,
and communications team, is arguably well positioned to respond
to criticism, and in some cases to stave it off. Congress, on
the other hand, has at least 535 press secretaries for
individual Senators and Representatives, whose primary job is
to articulate a message effectively on behalf of their
individual bosses, sometimes at the expense of the institution.
Indeed, many Members have found it effective to run against the
institution in their electoral campaigns--Send Candidate A to
Washington, DC, and she'll keep those ``bums'' in line! Rarely
do campaign advertisements proclaim, Send Candidate B to
Congress to join his esteemed colleagues in important
policymaking!
What does low public job approval of Congress, which has
ebbed and flowed a great deal since it was first measured by
public opinion polling firms in a consistent manner in the mid-
1970s, mean for Congress and the people who work for Congress?
\4\ Former Representative Lee Hamilton has argued, in How
Congress Works and Why You Should Care: ``In a representative
democracy like ours, in which Congress must reflect the views
and interests of the American people as it frames the basic
laws of the land, it really does matter what people think about
Congress.'' \5\ Some scholars argue that distrust and
disapproval of government has consequences for behaviors that
are important to the viability of the political system, such as
voting and other forms of political participation. Moreover, as
some political scientists argue, dissatisfaction with Congress
(and other government institutions) leads to decreased
tendencies to comply with laws, run for elected office, or
engage in the political process; there is, therefore, cause for
Congress to be concerned with low approval of the
institution.\6\
---------------------------------------------------------------------------
\4\ Prior to Gallup introducing the question in 1974, the exact
question about job approval had not been used in a consistent manner,
but there had been earlier attempts at measuring congressional
performance.
\5\ Lee H. Hamilton, How Congress Works and Why You Should Care
(Bloomington, IN: Indiana University Press, 2004), pp. 75-76.
\6\ John R. Hibbing and Elizabeth Theiss-Morse, Stealth Democracy:
Americans' Beliefs about How Government Should Work (Cambridge, United
Kingdom: Cambridge University Press, 2002), p. 210.
---------------------------------------------------------------------------
Report Overview
There are a number of reasons the public is dissatisfied
with Congress and American political institutions. As two
scholars of public opinion of Congress have explained, ``while
disgust with Congress is widespread, people differ in their
actual level of support and in the reasons behind their
evaluations of Congress.'' \7\ First, the report draws on the
results of over 1,000 public opinion polls from a number of
sources--ABC, CBS, Gallup, Fox, etc.--all available on the
subscription database, IPOLL, at the Roper Center, to display
polling results on public attitudes about the job performance
of Congress over the period 1974 to 2014.\8\ Second, given this
trend of disapproval in the evaluation of Congress, the report
discusses the research on public evaluations of Congress.
Third, the report examines some possible attitudinal correlates
of the public's views of Congress, the institution, including
economic attitudinal data from the Survey of Consumers,
conducted by the University of Michigan.\9\ In addition, other
correlates are examined and discussed. Appendix A provides a
discussion of the methodology used to calculate the annual
averages for all measures shown in the report. It also
discusses how the concept of correlation is used in the report.
Appendix B displays the tables upon which the graphs are based.
---------------------------------------------------------------------------
\7\ John. R. Hibbing and Elizabeth Theiss-Morse, Congress as Public
Enemy: Public Attitudes toward American Political Institutions
(Cambridge, United Kingdom: Cambridge University Press, 1995), p. 106.
\8\ The Roper Center of Public Opinion Research is located at the
University of Connecticut, Storrs, Connecticut. For a description of
its holdings, see http://www.ropercenter.uconn.edu/about_roper.html.
The Roper Center's IPOLL database contains the results of national
surveys conducted as far back as 1935. The database itself consists of
the results of over 600,000 questions. See http://
www.ropercenter.uconn.edu/data_access/ipoll/ipoll.html.
\9\ See Survey of Consumers, University of Michigan, at http://
www.sca.isr.umich.edu/. The Survey of Consumers has been conducted by
the Survey Research Center at the University of Michigan since 1946.
Each month, questions about personal finances, business conditions, and
future buying plans are posed to a national probability sample of 500
adults to measure consumer confidence. Also, see http://
press.sca.isr.umich.edu/press/about_survey.
---------------------------------------------------------------------------
Congressional Job Approval, 1974 to 2014
Over the past 40 years, many polling organizations have
tracked congressional job performance by posing the question,
Do you approve or disapprove of the way Congress is handling
its job?, to national probability samples of Americans.
Approval of the job that Congress is doing has ebbed and
flowed, but, until recently, has not dropped lower than the
high teens.
Figure 1 shows, over the period 1974 to 2014, the annual
average percentage of respondents approving of the job Congress
has been doing.\10\ The data show that, over this period,
Americans have not held Congress in especially high regard--on
average, congressional job approval is 32 percent over the 40-
year period. While approval has varied over the years, it
appears to be in its worst decline since September 2001. Before
examining the data, it is helpful to briefly provide some
historical context to select high and low points.
---------------------------------------------------------------------------
\10\ See Appendix A for a discussion of how the annual percentages
were calculated. Note that comprehensive and comparable data on job
approval are available beginning in 1974, and, as a result, this is
where discussion can begin. But as indicated in footnote 4 above,
polling organizations had asked questions of the public about the
Congress prior to this year. However, these questions tended to vary a
good deal in content or wording.
---------------------------------------------------------------------------
An examination of Figure 1 and Table B-1 appears to
indicate three periods of low levels of job approval and two
periods of relatively high approval. The first low period
appears to clump in the period 1974 to 1983, with the lowest
point, 19 percent, occurring in 1979. The entire period was
characterized by the resignation of a disgraced President, two
oil crises, two economic recessions, the Iranian hostage
situation, high unemployment, and high inflation. Any or all of
these might have had an impact on the lowering levels of trust
in government institutions, including Congress.
The second period characterized by lower levels of job
approval was the period 1992 to 1994. With respect to Congress,
this particular period was characterized by scandals, resulting
in a large amount of negative media coverage and, ultimately,
the convictions of several Members of Congress. The final low
job approval period shown in the graph stretches from 2006 to
the present, and covers the period which some have referred to
as the ``Great Recession'' (2007-2009). In addition, due to
partisan balance in the Congress, unusually high levels of
partisanship, and what the media have often portrayed, rightly
or wrongly, as a political stalemate in which Congress has been
unable to get but a few major tasks done, this period has
marked a low point in congressional job approval over the 40-
year period for which we have measures.
On the other hand, there have been several high points in
the 40 years that job approval has been measured. The first
high period appears to have occurred during the mid- to late-
1980s. Similarly, the public's approval of how the Congress was
handling its job peaked during the period 1998 to 2002. In both
cases, there was underlying positive economic growth occurring.
In addition, these were periods where Congress was shown to be
conducting its constitutionally specified job, investigating
the actions of the President. Support for Congress (as well as
for President George W. Bush) would, of course, show up in the
polls after September 11, 2001, as the public saw the Congress
and the President working together to deal with that crisis and
its aftermath.
As noted, Figure 1 shows the annual average congressional
job approval from 1974 to 2014. The annual average approval
shown here is an average of all of the congressional approval/
disapproval questions asked in a given year.\11\ Some
noteworthy points of interest in Figure 1 (also see Table B-1)
include the following:
---------------------------------------------------------------------------
\11\ See Table B-1 for the specific percentages shown in Figure 1.
---------------------------------------------------------------------------
The average job approval over the past 40 years was 32
percent.
The highest approval seen over this time period was 53.4
percent in 1985. The lowest was 12.9 percent in 2014.
Over the past 40 years, the average annual congressional job
approval dropped below 20 percent seven times--instances where
20 percent or fewer Americans approved of the way Congress was
handling its job. Four of the years in which approval crept
below 20 percent occurred in the past 4 years, 2011-2014. In
1979, 1992, and 2008 congressional approval also was at or just
under 20 percent.
In 2011, congressional approval dropped to 17.6 percent and
has continued to decline, to 14.6 percent in 2012 and 14.4
percent in 2013; it dropped to 12.9 percent, a new historical
low annual average, in 2014.
Congressional approval has been greater than 50 percent only
four times in the past 40 years--1985, 1987, 2001, and 2002.
Figure 1. Annual Average Percentage Approving of Congressional Job
Performance
1974-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Roper Center IPOLL Database with annual percentage
estimates calculated by CRS. Also, see Table B-1 for the actual values.
The threshold boundaries, below 30 percent approval and
above 45 percent, are useful ``markers'' for organizing this
discussion of the information displayed in Figure 1, but
different cutoff points could be selected for discussion and
may yield different conclusions.
First, consider the earliest low-approval year, 1979. That
year, only 19 percent of the public approved of Congress,\12\
which was controlled in both Chambers by the Democrats.
Democratic President Jimmy Carter, losing popularity himself,
struggled, along with Congress, to deal with the Iran hostage
crisis (November), the 1979 energy crisis, the 1979 economic
recession, and the nuclear powerplant meltdown at Three Mile
Island. These events are standouts in terms of the type of
major political events impacting the American psyche. It is
certainly plausible to conclude that the Nation endured a good
deal of stress in 1979 that would have influenced the public's
support for governmental institutions. In the 1980 election,
Ronald Reagan defeated Jimmy Carter. In addition, while
Democrats retained their control of the House, Republicans
gained a net of 35 seats, and Republicans gained control of the
Senate.
---------------------------------------------------------------------------
\12\ There was only a single survey conducted in that year in which
the congressional job approval question was posed.
---------------------------------------------------------------------------
Congressional approval also dropped to 20 percent in 1992
following a brief recession starting in 1990, with effects
lingering into the early 1990s. At the same time, this period
(1992-1994) marked the so-called ``bank check-bouncing''
scandal as well as the ``Congressional Post Office'' scandal.
As would be expected for such newsworthy events, media coverage
was extensive and placed the whole Congress in a negative
light. Ultimately, some Members were indicted and convicted.
The final low job approval period shown on the graph
stretches from 2006 to the present. This period clearly
encompasses the disastrous economic period from 2007 to 2009,
often referred to as the ``Great Recession.'' However, what
also has been noted by some has been the period after the
recession, which has seen the most significant drop in the
percentage of the public viewing the performance of Congress in
a positive light. While media coverage has not been so intense
or as negative as it was during earlier scandals, it has been
relentless in pointing to lack of productivity by the
Congress.\13\ Given the partisan balance in Congress and the
high levels of partisan discord, the media have often
portrayed, rightly or wrongly, Congress as ``do-nothing,''
accomplishing little, or in a state of stalemate.
---------------------------------------------------------------------------
\13\ Ezra Klein, Wonkblog, ``14 Reasons why this is the worst
Congress ever,'' The Washington Post, at http://www.washingtonpost.com/
blogs/wonkblog/wp/2012/07/13/13-reasons-why-this-is-the-worst-congress-
ever/. Also, see the companion CRS centennial report in this volume,
Comparing Modern Congresses: Can Productivity Be Measured?, by Jacob R.
Straus.
---------------------------------------------------------------------------
Conversely, periods of high approval seem to have happened
during times of economic growth--1985-1987 and 1998-2002.
Previous research has found that the public is strongly
influenced by the Nation's economic condition and not as much
by their personal economic well-being.\14\ Political scientists
Virginia Chanley, Thomas Rudolph, and Wendy Rahn wrote, ``When
economic times are good and the public is less focused on
problems within the nation, citizens express greater confidence
in the people running the institutions of government.'' \15\
This explanation seems, in part, to corroborate the approval
trend in Figure 1.
---------------------------------------------------------------------------
\14\ See Hibbing and Theiss-Morse, Stealth Democracy, pp. 70-71;
and Donald R. Kinder and D. Roderick Keiwiet, ``Sociotropic Politics:
The American Case,'' British Journal of Political Science, vol. 11, no.
2 (April 1981), pp. 129-161.
\15\ Virginia A. Chanley, Thomas J. Rudolph, and Wendy M. Rahn,
``Public Trust in the Government in the Reagan Years and Beyond,'' in
What Is It About Congress that Americans Dislike?, ed. John R. Hibbing
and Elizabeth Theiss-Morse (Cambridge, United Kingdom: Cambridge
University Press, 2001), p. 77. For evidence that the public is more
likely to rely on evaluations of their own pocketbook, see Thomas J.
Rudolph, ``The Economic Sources of Congressional Approval,''
Legislative Studies Quarterly, vol. 27, no. 4 (November 2002), pp. 577-
599.
---------------------------------------------------------------------------
On the other hand, during these same periods, Congress was
involved in, and performing, its constitutionally mandated
check on the executive branch. In the first period (1985-1987),
Congress spent a good deal of time in media-covered hearings
investigating the ``Iran-Contra Affair.'' In the earlier years
of the second period (1998-2002), Congress was involved in the
impeachment and trial of a President. Media coverage was
extensive, and showed Congress ``doing its job.'' It appears
that, in part, the trends noted in the graph may reflect this
fact.
Yet, it is notable that as the economy has recovered since
the 2008 recession, approval of congressional job performance
has remained low and has not risen along with indicators of
fiscal recovery. The 2008 recession was, by most standards,
more severe than any recession since the 1930s Great
Depression, making it plausible that the American public would
be slow to recover from its economic weariness. On the other
hand, the level of stalemate in the legislative branch noted by
the media since the 2010 congressional elections is equally
likely to contribute to negative feelings about Congress.\16\
---------------------------------------------------------------------------
\16\ Drew DeSilver, ``Congress ends least-productive year in recent
history,'' Fact Tank, Pew Research Center, December 23, 2013, at http:/
/www.pewresearch.org/fact-tank/2013/12/23/congress-ends-least-
productive-year-in-recent-history.
---------------------------------------------------------------------------
What Figure 1, centering on the ebbs and flows of the
public's views of job approval of Congress, appears to suggest
is that, on the one hand, the views of the public about
government and about Congress in particular are, in part,
connected with exogenous factors (the conditions of the
economy, and international and national events) that set the
tone or milieu for the times and for the public's views. At the
same time, direct action by Congress, whether viewed as
positive or as negative, often combined with media exposure,
also may have an influence on how the public evaluates
Congress. The next section attempts to provide a better
understanding of how such an evaluation process occurs.
Explaining the Public's Evaluations of Congress
The discussion in this section of the report briefly
reviews three broad theoretical frameworks used to explain why
the public generally disapproves of the legislative branch.
First, policy explanations posit that people match their
expectations of what and how much they think Congress should be
doing with what Congress is doing. Disapproval occurs when
expectations do not match perception. Second, process
explanations suggest that people are generally dissatisfied
with the core tendencies of the democratic legislative process:
deliberation, debate, compromise, and disagreement. To the
extent that disagreement and discord in Congress increase, so
too does the public's low regard for the institution. Third,
exogenous factors explanations deg. posit that outside
factors such as the economy, international conflict,
Presidential approval, and the general state of national
affairs color individuals' perceptions and trust in government.
When there is a perception that, both domestically and
internationally, ``things are going well,'' generally, the
public will be more likely to display confidence in government.
Policy Explanations: Is Legislative Productivity the Issue?
Scholars of public opinion have traditionally turned to
policy explanations to help understand why the public views the
government the way it does.\17\ Policy explanations for
governmental support are grounded in the notion that elected
officials produce policies in exchange for the public's
support. When the public finds the policies their government is
producing disagreeable, they reduce or withdraw their support,
and the government in turn may respond by producing more
favorable public policies.\18\ Policy explanations for
government dissatisfaction predict that citizens develop policy
preferences on one or more policy issues and then seek out
candidates and parties whose policy priorities most closely
match those preferences through their campaign promises, party
platforms, and voting records. This may happen prospectively or
retrospectively; that is, voters may attempt to identify a
candidate who most closely adheres to their policy agenda or,
alternately, voters may also decide that the incumbent no
longer matches their preferences and cast their votes for
someone new in the next election.\19\
---------------------------------------------------------------------------
\17\ For two examples of this approach, see Anthony Downs, An
Economic Theory of Democracy (New York: Harper and Row, 1957); and
Benjamin I. Paige and Robert Y. Shapiro, The Rational Public: Fifty
Years of Trends in Americans' Policy Preferences (Chicago: University
of Chicago Press, 1992).
\18\ For a general explanation, see Paige and Shapiro, The Rational
Public, especially the introductory chapter.
\19\ For example, three prominent political scientists discuss
conceptualization of policy explanations. V.O. Key argues that citizens
vote retrospectively, as they are concerned with real policy outcomes.
See Valdimer Orlando Key, Jr., The Responsible Electorate: Rationality
in Presidential Voting, 1936-1960 (Cambridge, MA: Belknap Press, 1966).
Anthony Downs makes the case that citizens only use the past to
evaluate what a party will do in the future. See Downs, Economic
Theory. Morris Fiorina develops an argument that retrospective voting
is based on expectations about future well-being and evaluations of a
party's past performance. See Morris Fiorina, Retrospective Voting in
American National Elections (New Haven, CT: Yale University Press,
1981).
---------------------------------------------------------------------------
General dissatisfaction with governmental institutions like
Congress is thought by some to follow a similar path--people
evaluate their own policy preferences and then compare them to
the policy outputs generated by the current Congress. The
presumption is that people will support an institution that
produces the kinds of policies that they find most agreeable
and oppose an institution that produces policies that do not
resemble their own policy priorities. This expectation is
theoretically attractive, but it hinges on the public's ability
to draw distinctions and assign credit and blame to
legislators, political parties, and institutions.
Given that so few bills introduced in Congress make it into
law, and perhaps even fewer bills introduced in Congress
receive attention by the media, it is a challenge for citizens
to keep track of policy outputs. The legislative branch, by the
Founders' intent, is designed to stymie more legislation than
it passes, which makes it a challenge for even the most adept
congressional observers to measure policy output at any given
time.\20\ Only about 6 percent of bills introduced in Congress
get enacted into law. As a result, even though Members of
Congress expend a lot of energy advancing their own and their
colleagues' legislative goals, they spend more time blocking or
being indifferent to other Members' legislative efforts,
especially when those efforts conflict with their partisan and
personal goals. This behavior may be seen by the public as
negative and not productive in that the end result is not
necessarily passing legislation.
---------------------------------------------------------------------------
\20\ See the companion CRS centennial report in this volume,
Comparing Modern Congresses: Can Productivity Be Measured?, by Jacob R.
Straus.
---------------------------------------------------------------------------
Further complicating matters, it is less arduous for the
media to cover legislative strategy--who said what and who
countered with what--than it is to cover the substance of a
policy proposal. Policy proposals constantly change. As a
result, journalists covering Capitol Hill must expend a great
deal of effort and resources to stay abreast of changes in
policy proposals. On the other hand, staying on top of the
players in the debate themselves and the interplay over an
issue may be less burdensome and more newsworthy. To the extent
that the public learns about Congress from the media, the
capacity and the ability of the media to paint an accurate
picture of policy productivity must be weighed. Finally, the
effects of policy proposals are often not felt until years
after Congress passes a law. This makes it even harder for
citizens to assign credit and blame to particular Members of
Congress, or to a political party, as power is transferred from
one party to another. In addition, the composition of one
Congress is usually not the same as Congresses following it.
For an assessment as complex as an evaluation of the entire
legislative branch, evidence suggests that other factors (see
below, ``Some Correlates of Congressional Job Approval at the
Aggregate Level''), beyond policy considerations, play an
equally important, if not more important role, in citizens'
evaluations.\21\
---------------------------------------------------------------------------
\21\ David C. Kimball and Samuel C. Patterson, ``Living Up to
Expectations: Public Attitudes toward Congress,'' The Journal of
Politics, vol. 59, no. 3 (August 1997), pp. 701-728.
---------------------------------------------------------------------------
Process Explanations: Is the Legislative Process the Issue?
In addition to policy explanations, several scholars have
put forth process explanations. While the public certainly has
expectations about how Members of Congress should behave in
their role as representatives and conduct themselves in
general, research also suggests that the public is especially
disgruntled with the legislative process more generally. Focus
group research reveals that some Americans loathe compromise,
debate, and bargaining--fundamental characteristics of the
democratic process and characteristics of the modern
Congress.\22\ Political scientists John R. Hibbing and
Elizabeth Theiss-Morse wrote: ``Thus, people's reactions to
processes significantly affect their approval of Congress, the
institution that the people believe most publicly displays
those processes most reprehensible to them: bickering,
compromise, inefficiency, selling out to special interests.''
\23\
---------------------------------------------------------------------------
\22\ Hibbing and Theiss-Morse, Congress as Public Enemy, pp. 1-21.
\23\ Hibbing and Theiss-Morse, Stealth Democracy, p. 82.
---------------------------------------------------------------------------
What explains Americans' disdain for the democratic
process? Somewhere along the way, discussion, deliberation, and
compromise came to be perceived as haggling, bickering, and
arguing and not the democratic process at work. Rather than
focus on institutional outputs, it has been found that people
are more likely to focus on the process that was used to
generate policies. Moreover, the legislative process, as of
late, has been characterized by increasingly partisan conflict
as polarization in Congress has increased. Political scientist
Mark Ramirez concluded in a paper published in 2009: ``The
results here show a link between partisan conflict among
members of Congress, and public evaluations of the institution
across time.'' \24\ This research strongly suggested that the
more conflict is observed or perceived in Congress, the less
the public approves of Congress.
---------------------------------------------------------------------------
\24\ Ramirez, ``The Dynamics of Partisan Conflict,'' pp. 629, 681-
694.
---------------------------------------------------------------------------
Another reason the public may focus on the process by which
laws are produced may be that critiquing the process requires
less information. The legislative process, while potentially
complicated, does not fluctuate a great deal over time. The key
players and their formal roles do not change quickly, unlike
the substance and volume of policy proposals.
It may also be the case that the public and the media have
come to rely more on process considerations than policy
evaluations because the process has become more salient to the
legislative branch itself. The national news media report a
great deal on partisan disagreements in Congress. A viewer can
miss the nuance of each party's and individual Member's
positions on specific tax, trade, or spending legislation but
still understand that the parties are battling over these
issues. Scholars also argue that an increased reliance over the
past three decades on special rules in the House to achieve
legislative goals rather than compromise and negotiation has
become the norm, rather than the exception.\25\ In sum, process
considerations may be more readily available to citizens as the
media devote more time to heated debates and partisan battles
over Chamber rules.
---------------------------------------------------------------------------
\25\ Barbara Sinclair, Unorthodox Lawmaking, 4th ed. (Thousand
Oaks, CA: CQ Press, 2011), especially chapter 3.
---------------------------------------------------------------------------
Exogenous Factors Explanations: Is Approval Outside Congress' Control?
While the policy and process explanations discussed above
point to factors that are ostensibly within Congress' control,
a good deal of political science research points to factors
outside of Congress' control that appear to affect the way the
public evaluates the legislative branch. Some research suggests
that variables exogenous to Congress, such as Presidential
approval, the presence of international conflict, and the
performance of the economy, influence the public's opinion of
the legislative branch.
Approval of congressional performance appears to decline
when economic conditions are poor, or when there is antagonism
between the President and Congress. Approval (both
congressional and Presidential), however, tends to increase
``as the public rallies to support the political system during
international crisis.'' \26\ This rally-around-the-flag
phenomenon explains why, for example, approval for the
legislative branch increased following the terrorist attacks on
the United States on September 11, 2001. Citizens tend to
support government when under attack, particularly in the early
months of a conflict; or when the country is under duress as
after natural disasters, they look to leaders to address crises
and solve problems.
---------------------------------------------------------------------------
\26\ Glenn R. Parker, ``Some Themes in Congressional
Unpopularity,'' American Journal of Political Science, vol. 21, no. 1
(February 1977), pp. 93-109, 108.
---------------------------------------------------------------------------
Presidential approval may have an effect on the way the
public assesses the legislative branch as a decline in
Presidential popularity tends to speak to an accumulation of
policy discontent. In this case, the blame for the country's
problems is spread across the branches of government. Some of
the same variables that appear to influence the direction of
Presidential approval appear to affect congressional approval.
Some studies suggest that the strength of the economy, the
occurrence of international conflict, and trust in government
generally appear to influence both congressional and
Presidential approval.\27\
---------------------------------------------------------------------------
\27\ Ibid.
---------------------------------------------------------------------------
Some Correlates of Congressional Job Approval at the Aggregate Level
\28\
---------------------------------------------------------------------------
\28\ For a discussion of how the term ``correlation'' is used in
this report, see Appendix A.
---------------------------------------------------------------------------
The factors potentially influencing congressional approval
discussed above, while not explored in statistical models in
this report, provide a context for congressional approval data
presented below. Explaining the highs and lows of congressional
approval is not as simple as identifying one institution,
policy output, or event. Rather, the public's approval of
Congress is complicated and multifaceted.
The Economic Correlates of Congressional Job Approval
Eleven annual economic measures were created spanning the
period 1970 to 2014. For each, to the extent possible, values
were aggregated over months, quarters, and years. Two of the
measures, real GNP and unemployment rates, were taken from the
appropriate government agencies (Bureau of Economic Analysis
and Bureau of Labor Statistics, respectively). The other nine
measures were economic attitudinal measures contained in the
Survey of Consumers conducted by the Survey Research Center at
the University of Michigan. Each of these measures of economic
activity or attitudes was correlated over the timespan 1974 to
2014 as part of the process of determining if there was a
relationship between economic trends or the perception of
economic trends and the percentage of congressional job
approval for the time period.\29\
---------------------------------------------------------------------------
\29\ Table B-7 in Appendix B. For a discussion of how the term
``correlation'' is used in this report, see Appendix A.
---------------------------------------------------------------------------
There was some correlation between congressional job
approval and percentage change in real GNP (0.217) or
unemployment (^0.457). The correlations for the various
economic attitudinal measures and congressional job approval
ranged from a low of ^0.089 to a high of 0.741. Five of the
eight economic attitudinal variables examined show correlations
with congressional job approval in the range 0.652 to 0.741,
thus reinforcing the view that, at least, the perception of
``good economic times'' has a strong positive effect on how one
relates to the government. However, one of the five economic
attitudinal variables is especially interesting as it combines
economics with government and displays the highest correlation
of all variables examined. The trend in that economic
attitudinal variable, along with the trend in congressional job
approval, is displayed in Figure 2, below.\30\
---------------------------------------------------------------------------
\30\ See Table B-7. For a discussion of how the term
``correlation'' is used in this report, see Appendix A.
---------------------------------------------------------------------------
Figure 2 provides some visibility into the notion that
Americans' evaluations of the job Congress is doing is closely
tied to their evaluations of how well the government is doing
on economic indicators. Figure 2 plots congressional approval
against survey data from the University of Michigan's Survey of
Consumers (1970-2014). Specifically the survey question reads:
As to the economic policy of the government--I mean steps
taken to fight inflation or unemployment--would you say the
government is doing a good job, only fair, or a poor job?
Figure 2, which displays the annual percentage of persons
saying the government is doing a ``good job,'' shows how
closely these two measures of the public's approval track one
another. The correlation between these two is relatively high
at 0.741.\31\ The other notable observation from Figure 2 is
that, since 2000, both congressional approval and the
percentage of people saying the government is doing a ``good
job'' handling the economy has been consecutively lower over
the past 4 years.\32\
---------------------------------------------------------------------------
\31\ See Table B-7. For a discussion of how the term
``correlation'' is used in this report, see Appendix A.
\32\ See Table B-2 for the specific values used in Figure 2.
---------------------------------------------------------------------------
In addition, while sometimes slight, the percentage of
persons indicating that the government is doing a good job with
the economy is always less than the percentage of the
population approving of the job Congress is doing. This
suggests that, as far as the public is concerned, what Congress
does is not the only factor determining whether or not the
government does a good job on economic policy. This, if true,
is relatively sophisticated thinking.
Figure 2. Annual Average Percentage Congressional Approval Versus
Government Doing ``Good Job'' on Economy
1970-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: For congressional approval statistics, see Roper Center
IPOLL database; annual estimates calculated by CRS; for ``Government
Doing A Good Job on Economic Policy,'' see Survey of Consumers,
University of Michigan.
Congressional and Presidential Approval
Most researchers consider that, at least in the eyes of the
public, the institution of the Presidency is different from
that of Congress. However, both are aspects of the Federal
Government, so it should come as little surprise that the
approval of the job of one may be, in some fashion, related to
the job approval of the other. Figure 3 plots the annual
average Presidential job approval (1970-2014) and annual
average congressional job approval (1974-2014). The first thing
to note is that the President consistently enjoys a more robust
approval rating than Congress over the time period
examined.\33\ The lowest that Presidential approval has dropped
since 1970 was to 34 percent in 2007. The second year in which
Presidential approval was nearly that low was 1974, the year
Richard Nixon resigned the Presidency following the Watergate
scandal of 1972-74 and was then pardoned by President Ford. The
second notable observation in Figure 3 is that congressional
approval and Presidential approval track each other closely.
The two measures depicted on the graph are strongly correlated
(0.665).\34\ Figure 3 shows that, when the public is unhappy
with Presidential performance, they appear to be unhappy with
congressional performance as well.\35\
---------------------------------------------------------------------------
\33\ The Supreme Court, not pictured in Figure 3, typically comes
out ahead of the President.
\34\ See Table B-7. For a discussion of how the term
``correlation'' is used in this report, see Appendix A.
\35\ Table B-3 for the specific values used in Figure 3.
---------------------------------------------------------------------------
Are Presidential approval and congressional approval
related, or do people tend to evaluate these institutions
separately? Some research conducted by political scientists
suggests that individuals' assessments of the President appear
to play a role in explaining congressional approval. One theory
suggests that citizens cognitively link their support for
different institutions, and that citizens' approval or
disapproval of the President is an important predictor of their
support for Congress.\36\ Other scholars posit that, while
Presidential approval may not play a significant independent
role in explaining congressional approval, the two institutions
are linked by ``a responsibility shared by each institution for
the overall health of the economy.'' \37\ Still, more recent
research draws an even finer distinction and finds that
individuals who are poorly informed about Congress are more
likely to use their assessment of the President to also assess
Congress, as Presidential approval is a more readily available
evaluative factor.\38\
---------------------------------------------------------------------------
\36\ See Parker, ``Some Themes in Congressional Unpopularity,'' pp.
93-109.
\37\ Robert H. Durr, John B. Gilmour, and Christina Wolbrecht,
``Explaining Congressional Approval,'' American Journal of Political
Science, vol. 41, no. 1 (January 1997), pp. 175-207, 195.
\38\ Jeffrey J. Mondak, Edward G. Carmines, Robert Huckfeldt, Dona-
Gene Mitchell, and Scot Schraufnagel, ``Does Familiarity Breed
Contempt? The Impact of Information on Mass Attitudes toward
Congress,'' American Journal of Political Science, vol. 51, no. 1
(January 2007), pp. 34-48.
---------------------------------------------------------------------------
Why does the President consistently receive higher job
approval marks than does Congress? One reason may be that the
President is one person and is armed with a press secretary and
a small army of communications staff working to push his
preferred message on a given day, week, or month. Congress
projects at least 535 separate voices, some unified and others
quite distinct. For this simple reason, the President typically
enjoys an advantage in agenda setting and issue framing, an
observation borne out in Figure 3. Hence, while the public may
view unfavorably the entire operation of the Federal
Government, they appear to be consistently harsher on Congress
than the President.
With this dynamic of shared responsibility in mind, it
seems intuitive that the public's support for the President and
for Congress under divided government might decrease support
for the institutions.\39\ Yet, research suggests that this is
only the case for a small subset of citizens, those who are
knowledgeable about politics and who strongly identify with one
of the two major political parties. Rather, political scientist
Jeffrey Bernstein observed, ``Most citizens rate the two
institutions while wearing a set of blinders, thinking the
worst of the political system and the institutions that
comprise it.'' \40\ Partisan control of the branches of
government does not appear to be a driving force, but partisan
discord does appear to negatively affect the public's
assessment of Congress. So, while most of the public may not
pay close attention to who holds the majority, they do assign
blame to the Congress for the bickering that may result when
the branches of government are controlled by different parties.
---------------------------------------------------------------------------
\39\ United government is a condition in which one political party
controls the White House and both Chambers of Congress. Divided
government is when the White House and one or both Chambers of Congress
are controlled by different parties.
\40\ Jeffrey Bernstein, ``Linking Presidential and Congressional
Approval During Unified and Divided Governments,'' in What is it About
Government that Americans Dislike?, ed. Hibbing and Theiss-Morse, pp.
98-117, 115.
---------------------------------------------------------------------------
Figure 3. Annual Average Percentage Job Approval-Congress Versus the
President
1970-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Roper Center IPOLL Database with annual percentage
estimates calculated by CRS; for Presidential approval, restricted to
Gallup Polls.
Assessment of Individual Members of Congress Versus Congress
It has been observed that the relationship of the public to
their own Representative is different from that of their
relationship to the institution called Congress. In 1975,
political scientist Richard Fenno identified an interesting
phenomenon, later deemed ``Fenno's Paradox'': ``We do, it
appears, love our Congressmen. On the other hand, it seems
equally clear that we do not love our Congress.'' \41\ This
phenomenon emerges in Figure 4, where it is clear that the
public has held its own Member of Congress in much higher
regard than it has held Congress as a whole. Incumbent Members
of Congress generally enjoy high reelection rates, typically
above 90 percent. This phenomenon often is chalked up to the
inherent difficulty in assigning blame for dissatisfaction or
credit for satisfaction to any single legislator. And until
recently, the public was content to assign the majority of any
blame onto the institution or ``other Members.''
---------------------------------------------------------------------------
\41\ Richard. F. Fenno, Jr. ``If, as Ralph Nader Says, Congress is
`the Broken Branch,' How Come We Love Our Congressmen So Much?'' in
Congress in Change: Evolution and Reform, ed. Norm Ornstein (New York,
Praeger: 1975), pp. 275-287.
---------------------------------------------------------------------------
While this dynamic has held for the past 40 years, the
tides appear to be turning. In 2014, for the first time in the
history of reliable polling, we now see a majority of Americans
disapproving of their own Member of Congress (not shown in
Figure 4 or in Table B-4).\42\ The consequence or inconsequence
of this new downturn in public opinion will not be fully
apparent until the conclusion of the 2014 midterm elections,
but research suggests that a dramatic decrease in congressional
approval generally may portend electoral upheaval as the public
desires to ``vote the incumbent out.'' \43\
---------------------------------------------------------------------------
\42\ Peyton M. Craighill and Scott Clement, ``A Majority of People
Don't Like Their Own Member of Congress. For the First Time Ever,'' The
Washington Post, August 5, 2014, at http://www.washingtonpost.com/
blogs/the-fix/wp/2014/08/05/a-majority-of-people-dont-like-their-own-
congressman-for-the-first-time-ever/. This poll result was not included
in Table B-4 or in Figure 4, as it was not available when the data were
compiled.
\43\ Jack Citrin and Samantha Luks, ``Political Trust Revisited:
Deja Vu All Over Again,'' in What is it About Government that Americans
Dislike?, ed. Hibbing and Theiss-Morse, pp. 9-27.
---------------------------------------------------------------------------
Figure 4. Annual Average Percentage Job Approval-Congress Versus Own
Representative
1974-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Roper Center IPOLL Database with annual estimates
calculated by CRS.
Figure 5 reinforces the view that a decrease in approval
may portend an electoral upheaval. The graph shows support for
reelecting one's own Member as compared to reelecting the whole
Congress. Again, members of the public appear to hold their own
Member of Congress in greater regard than they do Congress as a
whole. However, since 2010, on average, a majority of
respondents to these surveys have favored ``electing someone
else'' when asked about their own Representatives. With the
exception of a single survey in 1990, the surveys indicated
that a majority of the public from 1992 to 2009, on average,
consistently supported the reelection of their own Member.\44\
---------------------------------------------------------------------------
\44\ See Table B-5 for the specific values used in Figure 5.
---------------------------------------------------------------------------
Congressional Approval and Trust in Government
In 1958, the researchers at the University of Michigan
conducting the 1958 American National Election Study included
the first trust-in-government question on the survey,
attempting to measure how often respondents felt they could
trust the government in Washington to do the right thing.\45\
Figure 6 plots the annual percentages approving the job that
Congress is doing and the annual percentages of the public who
felt they could trust the government in Washington ``always''
or ``most of the time'' to do what was right. These two
measures, while related to one another, are distinct.\46\
Congressional approval measures the public's approval of the
job that Congress is doing. Trust in government is more
general, and measures a respondent's trust in the entire
national government. The results in Figure 6 demonstrate that
congressional approval and trust in government track very
closely.\47\
---------------------------------------------------------------------------
\45\ The question read: ``How much of the time do you think you can
trust the government in Washington to do what is right--just about
always, most of the time or only some of the time?'' For questions and
results from 1958 to 2008, see http://www.electionstudies.org/nesguide/
toptable/tab5a_1.htm.
\46\ The correlation between the two sets of annual percentages is
0.707. See Table B-6. For a discussion of how the term ``correlation''
is used in this report, see Appendix A.
\47\ See Table B-6 for the specific values used in Figure 6.
---------------------------------------------------------------------------
Figure 5. Annual Average Percentage Favoring Reelecting Own
Representative Versus Reelecting Congress
1978-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Roper Center IPOLL database with annual estimates
calculated by CRS.
According to three scholars who study trust in governmental
institutions, competence is ``at the center of understanding
public perceptions of trust in government.'' Furthermore, these
same authors have written, ``When economic times are good and
the public is less focused on problems within the nation,
citizens express greater confidence in the people running the
institutions of government.'' \48\
---------------------------------------------------------------------------
\48\ Virginia A. Chanley, Thomas J. Rudolph, and Wendy M. Rahn,
``Public Trust in Government in the Reagan Years and Beyond,'' in What
is it About Government that Americans Dislike?, ed. Hibbing and Theiss-
Morse, pp. 59-79.
---------------------------------------------------------------------------
Americans' level of trust in government has dropped
substantially over the past 50 years. While almost 80 percent
of Americans trusted the Federal Government in the late 1950s
and early 1960s, by the 1990s that number had plummeted to a
mere 20-30 percent. And it continues to decline.\49\ In
statistical models, job approval of Congress turns out to be a
robust predictor of trust in government. This appeared
especially to be the case in the 1990s, likely due to
heightened attention to conflict between the executive and
legislative branches and the involvement of some prominent
legislators in a variety of high-profile scandals.\50\
---------------------------------------------------------------------------
\49\ Jack Citrin and Samantha Luks, ``Political Trust Revisited,''
in What is it About Government that Americans Dislike?, ed. Hibbing and
Theiss-Morse, pp. 9-27.
\50\ Ibid.
---------------------------------------------------------------------------
There are several implications for declining trust in
government. First, political mistrust appears to be a catalyst
for voting against the incumbent President or his party's
candidate.\51\ Hence, rising mistrust may account for electoral
change and, as a result, more partisan discord in government.
Second, trust is also important when policies, enacted by the
government, require cooperation and sacrifice, as the public is
more likely to voluntarily follow the law when they trust the
laws and those making them.
---------------------------------------------------------------------------
\51\ Ibid., p. 26.
---------------------------------------------------------------------------
Figure 6. Annual Average Percentage Congressional Job Approval Versus
Trust in Government
1970-2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: Roper Center IPOLL Database with annual percentage
estimates calculated by CRS.
Conclusion
Representative government thrives when the represented
approve of and trust the institutions and Members therein who
represent them. To the extent that support for the legislative
branch is low, the United States runs the risk that citizens'
disengagement from the institutions of government will result
in a political system that produces policy outcomes that do not
reflect citizen preferences. To the extent that citizens'
unfavorable ratings of the legislative branch are based on a
deep-seated dissatisfaction with democratic principles like
debate and deliberation, as previous research has suggested,
the remedy to congressional disapproval is essential but not
entirely clear.
Americans have a decidedly negative view of Congress--the
data presented here show that the public does not hold the
institution in high regard, even more so when compared to the
other branches of the Federal Government. Over the 40-year time
period examined, the public's negative feelings about Congress
are strongly and positively correlated with a lack of trust in
government and a lack of confidence in the Federal Government's
ability to handle the economy. The public's low regard for the
legislative branch, however, is today at a historic low, and,
for the first time since reliable polling data have been
available, a majority of the public does not have confidence in
their own Member of Congress. And, perhaps more consequentially
for the stability of the institution, since 2010, on average, a
majority of survey respondents have favored ``electing someone
else'' than their own Representatives.
What explains this lackluster support for the legislative
branch and, more important, the consistent decline over the
past 4 years? Political science research suggests that
Americans do not understand the legislative process, either due
to the complexity of the process; the media's role in
emphasizing negative aspects of Congress' Members and work; or
inadequate education of the public by Congress and others about
what Congress does, how it does its job, and why it functions
as it does. One finding that emerges consistently in research,
however, is that Americans are not convinced that negotiating,
debate, and the back and forth that is required of legislators
on Capitol Hill is even necessary; they instead regard it as
undesirable and symptomatic of institutional dysfunction. As
Lee Hamilton explained, ``One of the ironies about Congress is
that while the legislative system put in place by the framers
has served our nation well for more than two hundred years,
many of its essential components are not all that popular with
the general public. Americans like quick action rather than
delay.'' \52\
---------------------------------------------------------------------------
\52\ Lee H. Hamilton, How Congress Works and Why You Should Care,
p. 117.
---------------------------------------------------------------------------
Representation, of course, is a two-way street and requires
the participation and voice of the represented and
Representatives and Senators. As two political scientists
concluded: ``The real failure of the American people is not
that they are unable to recall the name of the secretary of
state, that they do not know how many senators represent each
state....'' Rather, ``citizens' big failure is that they lack
an appreciation for the ugliness of democracy.'' \53\ The
public has difficulty in tolerating the bickering and
negotiation among Members of Congress--characteristics of the
institution that only appear to be increasing with increasing
polarization in Congress and the Nation as a whole--because
they do not understand why it is a necessary component of the
democratic legislative process. Both Congress and the public
might consider ways to improve communication and understanding
of the legislative branch.
---------------------------------------------------------------------------
\53\ Hibbing and Theiss-Morse, Stealth Democracy, p. 157.
---------------------------------------------------------------------------
That the public receives most of its information about
Congress from the news media is potentially problematic if the
information tends to be more negative and focused on scandal
and partisan rancor. A recent well-known Capitol Hill political
analyst, Stuart Rothenberg, lamented in an August 12, 2014,
Roll Call article that the news media are partly to blame for
Americans' belief that Congress is unproductive and
dysfunctional. Rothenberg wrote:
Journalists and talking heads tell voters over and over
that Congress is inept, even corrupt, and when we ask them what
they think about Congress, they call Congress inept and even
corrupt. And then we report back that Americans think Congress
is inept and even corrupt. It's a never-ending feedback loop
that reinforces the conventional wisdom.\54\
---------------------------------------------------------------------------
\54\ Stuart Rothenberg, ``Self-Fulfilling Prophecy Might Be Why
Americans Hate Congress,'' Roll Call, August 12, 2014, at http://
blogs.rollcall.com/rothenblog/self-fulfilling-prophecy-might-be-why-
americans-hate-congress/?dcz=.
Congress has a communications challenge, both with regard
to the public and the press. Unlike the Office of the
President, Congress does not speak with one voice; it has more
than 535 voices that are often at odds with one another. The
public and the media must make sense of these many different
voices. Moreover, congressional candidates often run against
the institution as a way to garner campaign support and
attention. One potential solution is for Congress to devote
more time and resources to informing the public about core
tenets of the legislative process and encourage informed,
intelligent public participation.
The last eloquent defender of Congress as an institution,
Senator Robert Byrd from West Virginia, used his floor
speeches, committee work, and press relationships to educate
the public, the media, and his colleagues about the Senate and
Congress. Congress needs new advocates, individuals to explain
what it does and why it does it--persons to make clear that,
given the diverse interests of a large Nation, the only way to
settle issues is through debate, rancor, and compromise. The
process is neither neat nor elegant to most people, but the
alternatives of top-down or secret authoritarian systems are
not something that most people in this country would like to
see. With all their other duties, sitting Members may not be
able to take on this additional duty. But what about the many
former Members? They know the institution, perhaps better than
others.
Appendix A. Some Methodological Issues
The data used in this report are based on the results of
many public opinion surveys conducted over the past 40 years,
derived either from the IPOLL database at the Roper Center
(Congressional Job Approval, Job Approval of Own
Representative, Presidential Approval, Re-Elect Own
Representative, Re-Elect Congress, and Trust in Government) or
from the Survey of Consumers at the University of Michigan (Job
Approval of Government in Conducting Economic Policy).
Calculating the Percentages
Data from the Survey of Consumers were available as the
results from each individual monthly survey, combined into
quarterly summaries or combined into yearly summaries. Data, in
the form of percentage responses to the specific questions
posed in a survey, from the IPOLL database were available only
individually for each survey. Each question's result came from
a separate survey with a starting date of interviewing and an
ending date of interviewing, and with a specific sample size
associated with it. For example, the earliest results posing
the question about congressional job performance were from a
Gallup survey conducted between April 12, 1974, and April 15,
1974, with a sample of size 1,621 respondents. The results of
the survey shown in the IPOLL database indicated that 30
percent approved of the job Congress was doing, 47 percent
disapproved of the job, and 23 percent responded that they did
not know. Given these results, it was easy to estimate that the
number of respondents who approved was 486, who disapproved was
762, and who did not know was 373.
This same calculation was performed on each of the results
from each of the surveys asking the congressional job approval
question over the period 1974 to 2014--well over 1,000 surveys.
Yearly percentage estimates were then calculated in the
following way: Based on the survey interview ending-date year,
the estimated number of respondents for each of the categories
(Approve, Disapprove, and Did Not Know) was summed over all
surveys conducted within each year. Based on these numbers for
the entire year, the yearly percentages for each of the 40
years were easily calculated. Quarterly percentage estimates
were calculated similarly, but for each of 160 quarters.
The annual percentages for each of the other questions (Job
Approval of Own Representative, Presidential Approval, Re-Elect
Own Representative, Re-Elect Congress, and Trust in Government)
were calculated in exactly the same way.
Statistical Correlational Analysis Used in the Report
Correlation analysis is a statistical technique that can
show whether and how strongly pairs of variables may be
related. In surveying individual respondents, a correlational
analysis can show whether or not respondents who hold a
particular view on one subject also hold a particular view on
other topics or have certain characteristics. In a longitudinal
analysis with aggregate measures, the attempt is to see whether
one measure of a phenomenon moves, over the time period, in the
same way that another phenomenon moves (positive correlation),
in a completely opposite way (negative correlation), or that
the two phenomena move in relative random ways (no
correlation).
There are a variety of statistical measures that purport to
measure association and correlation. However, in this analysis,
the Pearson Product-Moment Correlation Coefficient statistic
was chosen to examine the relationship among the variable
examined. The Pearson r or r, as it is often referred to,
measures the linear dependence of two variables. The value of
the statistic ranges from 1 (perfect positive correlation) to
^1 (perfect negative correlation), with a 0 value indicating no
correlation.
While the statistic can be used to test a null hypothesis
or to construct confidence intervals, it is used in this report
in a purely descriptive way. The correlational analysis is
meant to suggest that the correlates examined in the report are
worth looking at empirically, even though there is a good deal
of evidence at the microlevel that the factors examined are
related, and relatively decent theoretical reasons for the
choice of the variables.
While the interpretation of the statistic is somewhat
arbitrary, for this analysis with this level of aggregation,
``high'' correlations would fall in the range 0.7 to 1.0 or
^0.7 to ^1.0, while ``low'' correlations would fall in the
range 0.3 to ^0.3 (see Table B-7).
There are some cautions with any correlational analysis
that need to be highlighted:
Correlation never is enough to prove causation. The fact
that two variables have a correlation of 1 does not say
anything about one variable causing another.
Especially with respect to time-related or longitudinal
analysis, the correlation of one variable with another can mean
nothing. Many different phenomena increase or decrease over
time. Without some legitimate theoretical reason to think that
there is a relationship, such correlations may just be
silly.\55\
---------------------------------------------------------------------------
\55\ For some rather funny correlations, see ``Spurious
Correlations,'' at http://www.tylervigen. com/.
---------------------------------------------------------------------------
The Pearson Correlation Coefficient is a measure of linear
dependence between two variables. This means that it is useful
in measuring a straight-line relationship between two
phenomena. As one goes up, the other goes up (or down) as well.
If the relationship between two variables is, in fact,
curvilinear, then the Pearson Correlation Coefficient is likely
to suggest that there is no relationship. There is no linear
relationship, but there is a curvilinear one.
The statistic as it is used in this analysis is not meant
to suggest causality, but is based on empirical research and a
reasonably solid theoretical foundation.
Appendix B. Tables
Table B-1. Annual Average Percentage of Congressional Job Approval-Disapproval
1970-1974
----------------------------------------------------------------------------------------------------------------
Percent Percent Percent don't Sample size
Survey year approving disapproving know-no for surveys in
Congress Congress opinion year
----------------------------------------------------------------------------------------------------------------
1970............................................ .............. .............. .............. ..............
1971............................................ .............. .............. .............. ..............
1972............................................ .............. .............. .............. ..............
1973............................................ .............. .............. .............. ..............
1974............................................ 37.30 41.40 21.30 4,797
1975............................................ 31.80 51.50 16.70 6,248
1976............................................ 24.00 58.00 18.00 1,538
1977............................................ 34.70 44.40 20.90 10,685
1978............................................ 29.60 50.60 19.80 7,524
1979............................................ 19.00 61.00 20.00 1,511
1980............................................ 28.80 53.30 17.90 3,269
1981............................................ 36.10 33.70 30.20 2,934
1982............................................ 29.00 54.00 17.00 1,504
1983............................................ 33.00 43.00 24.00 1,517
1984............................................ .............. .............. .............. ..............
1985............................................ 53.40 35.90 10.70 3,495
1986............................................ 42.00 37.00 21.00 1,552
1987............................................ 50.40 43.60 6.00 2,518
1988............................................ 42.60 48.60 8.80 2,508
1989............................................ 47.40 46.40 6.20 8,867
1990............................................ 30.50 61.30 8.20 16,702
1991............................................ 37.60 52.20 10.20 13,189
1992............................................ 20.20 72.20 7.60 12,282
1993............................................ 27.50 62.10 10.40 23,776
1994............................................ 27.20 63.40 9.40 34,883
1995............................................ 34.50 53.60 11.80 47,253
1996............................................ 31.90 57.60 10.50 32,402
1997............................................ 39.50 49.40 11.10 37,889
1998............................................ 48.20 41.60 10.10 71,451
1999............................................ 43.10 47.00 9.90 48,667
2000............................................ 46.30 41.40 12.20 15,101
2001............................................ 51.90 35.20 12.90 34,866
2002............................................ 51.30 36.80 11.90 36,271
2003............................................ 44.20 45.00 10.90 25,374
2004............................................ 41.80 48.70 9.50 18,213
2005............................................ 35.30 55.20 9.50 47,372
2006............................................ 28.80 63.20 7.90 65,418
2007............................................ 29.20 61.40 9.40 65,164
2008............................................ 19.70 72.40 7.90 36,733
2009............................................ 29.50 61.70 8.80 41,873
2010............................................ 21.00 73.10 5.90 49,656
2011............................................ 17.60 76.50 5.90 44,333
2012............................................ 14.60 78.70 6.70 31,711
2013............................................ 14.40 80.50 5.10 43,530
2014............................................ 12.90 82.00 5.10 7,606
----------------------------------------------------------------------------------------------------------------
Source: Roper Center IPOLL Database, with all calculations performed by CRS.
Note: In general, the question posed was: ``Do you approve or disapprove of the way Congress is handling its
job?''
Table B-2. Annual Average Percentage of Congressional Approval Versus Saying the Federal Government Is Doing a ``Good-Poor'' Job on Economic Policy
1970-2014
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sample
Percent Percent Percent Sample sizes sizes
Percent Percent saying saying saying for opinions
Survey year approving disapproving government government government congressional about the
Congress Congress doing good doing fair doing poor approval- government
job job job disapproval economic
data policy data
--------------------------------------------------------------------------------------------------------------------------------------------------------
1970........................................................... ......... ............ 16.47 46.04 27.05 ............. 2,739
1971........................................................... ......... ............ 20.73 47.16 24.51 ............. 3,889
1972........................................................... ......... ............ 19.94 53.76 20.45 ............. 4,939
1973........................................................... ......... ............ 13.71 45.75 35.05 ............. 5,587
1974........................................................... 37.30 41.40 6.79 43.79 42.63 4,797 5,817
1975........................................................... 31.80 51.50 6.28 50.67 38.74 6,248 5,575
1976........................................................... 24.00 58.00 11.89 54.16 27.85 1,538 5,443
1977........................................................... 34.70 44.40 18.28 56.82 18.02 10,685 5,067
1978........................................................... 29.60 50.60 10.98 55.14 29.77 7,524 11,186
1979........................................................... 19.00 61.00 8.49 48.58 39.24 1,511 12,960
1980........................................................... 28.80 53.30 8.40 46.21 42.28 3,269 8,675
1981........................................................... 36.10 33.70 25.35 45.80 24.22 2,934 8,273
1982........................................................... 29.00 54.00 20.09 44.59 32.17 1,504 8,318
1983........................................................... 33.00 43.00 23.22 49.52 25.17 1,517 8,356
1984........................................................... ......... ............ 31.51 47.74 18.83 ............. 8,301
1985........................................................... 53.40 35.90 29.52 49.76 18.53 3,495 7,836
1986........................................................... 42.00 37.00 27.77 50.61 19.66 1,552 7,878
1987........................................................... 50.40 43.60 21.73 51.97 24.03 2,518 7,377
1988........................................................... 42.60 48.60 22.91 53.01 22.24 2,508 6,016
1989........................................................... 47.40 46.40 20.40 56.18 20.82 8,867 6,024
1990........................................................... 30.5 61.3 15 55.06 28.1 16,702 6,032
1991........................................................... 37.6 52.2 11.23 54.17 32.4 13,189 6,053
1992........................................................... 20.2 72.2 6.72 42.81 48.97 12,282 6,040
1993........................................................... 27.5 62.1 12.02 50.4 34.05 23,776 6,058
1994........................................................... 27.2 63.4 15.98 55.71 26.07 34,883 6,069
1995........................................................... 34.5 53.6 16.82 54.93 26.18 47,253 6,024
1996........................................................... 31.9 57.6 19.91 53.45 24.9 32,402 6,008
1997........................................................... 39.5 49.4 26.82 53.85 17.24 37,889 6,002
1998........................................................... 48.2 41.6 41.49 44.88 10.58 71,451 6,011
1999........................................................... 43.1 47 42.17 45.15 10.68 48,667 5,995
2000........................................................... 46.3 41.4 43.65 44.49 9.82 15,101 6,020
2001........................................................... 51.9 35.2 33.1 48.23 14.05 34,866 6,013
2002........................................................... 51.3 36.8 27.73 51.19 18.07 36,271 6,011
2003........................................................... 44.2 45 21.23 48.07 28.9 25,374 6,014
2004........................................................... 41.8 48.7 22.65 47.42 28.74 18,213 6,040
2005........................................................... 35.3 55.2 19.16 48.3 31.63 47,372 6,029
2006........................................................... 28.8 63.2 17.49 47.41 33.93 65,418 6,015
2007........................................................... 29.2 61.4 17.44 48.57 32.64 65,164 6,045
2008........................................................... 19.7 72.4 7.46 43.33 47.73 36,733 6,044
2009........................................................... 29.5 61.7 19.59 45.54 32.97 41,873 6,054
2010........................................................... 21 73.1 13.98 45.57 39.66 49,656 6,067
2011........................................................... 17.6 76.5 10.99 41.59 46.32 44,333 6,013
2012........................................................... 14.6 78.7 12.77 42.63 43.24 31,711 6,054
2013........................................................... 14.4 80.5 12.14 41.17 45.58 43,530 6,036
2014........................................................... 12.9 82 7.92 42.97 48.91 7,606 505
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: For congressional approval-disapproval data, see Roper Center IPOLL database, with all calculations performed by CRS; for good-poor job on
economic policy, see Survey of Consumer Reports, University of Michigan.
Notes: In general, the question about congressional approval-disapproval was: ``Do you approve or disapprove of the way Congress is handling its job?''
The question about economic policy was: ``As to the economic policy of the government--I mean steps taken to fight inflation or unemployment--would
you say the government is doing a good job, only fair or a poor job?''
Table B-3. Annual Average Percentage Job Approval--Congress Versus President
1970-2014
----------------------------------------------------------------------------------------------------------------
Sample sizes Sample
for sizes for
Percent Percent Percent Percent congressional President
Survey year approving disapproving approving disapproving approval- approval-
Congress Congress President President disapproval disapproval
data data
----------------------------------------------------------------------------------------------------------------
1970.............................. ......... ............ 56.8 29.3 ............. 27,549
1971.............................. ......... ............ 50.1 37.1 ............. 20,277
1972.............................. ......... ............ 56.4 33.2 ............. 15,146
1973.............................. ......... ............ 41.8 47.3 ............. 30,830
1974.............................. 37.3 41.4 35.2 49.5 4,797 36,851
1975.............................. 31.8 51.5 43 40.5 6,248 29,508
1976.............................. 24 58 47.6 39 1,538 13,952
1977.............................. 34.7 44.4 62.5 19.8 10,685 36,603
1978.............................. 29.6 50.6 46 38.3 7,524 45,778
1979.............................. 19 61 36.9 49.6 1,511 39,486
1980.............................. 28.8 53.3 41.1 47.7 3,269 26,897
1981.............................. 36.1 33.7 57.4 28.6 2,934 30,639
1982.............................. 29 54 44.1 45.7 1,504 29,617
1983.............................. 33 43 43.2 45.9 1,517 41,162
1984.............................. ......... ............ 54.8 36.1 ............. 30,422
1985.............................. 53.4 35.9 60.3 30.2 3,495 25,110
1986.............................. 42 37 62.5 28 1,552 17,585
1987.............................. 50.4 43.6 49.5 41.3 2,518 29,711
1988.............................. 42.6 48.6 51.7 38.5 2,508 15,815
1989.............................. 47.4 46.4 62.9 17.2 8,867 25,444
1990.............................. 30.5 61.3 66 22.5 16,702 52,418
1991.............................. 37.6 52.2 71.7 20.7 13,189 51,627
1992.............................. 20.2 72.2 38.9 53.1 12,282 40,527
1993.............................. 27.5 62.1 48.8 39.1 23,776 39,611
1994.............................. 27.2 63.4 46.8 44 34,883 39,628
1995.............................. 34.5 53.6 47.2 41.3 47,253 35,723
1996.............................. 31.9 57.6 54.2 36.1 32,402 36,659
1997.............................. 39.5 49.4 58.3 31.8 37,889 26,027
1998.............................. 48.2 41.6 63.8 31.7 71,451 41,868
1999.............................. 43.1 47 61.2 35 48,667 37,029
2000.............................. 46.3 41.4 60 36 15,101 29,782
2001.............................. 51.9 35.2 66.3 24.5 34,866 33,089
2002.............................. 51.3 36.8 72.4 22.2 36,271 44,439
2003.............................. 44.2 45 60.5 35.4 25,374 41,367
2004.............................. 41.8 48.7 50.8 46 18,213 39,580
2005.............................. 35.3 55.2 45.8 50.5 47,372 42,643
2006.............................. 28.8 63.2 38 57.7 65,418 28,631
2007.............................. 29.2 61.4 33.6 62.1 65,164 27,291
2008.............................. 19.7 72.4 29.9 65.3 36,733 36,137
2009.............................. 29.5 61.7 58.3 33.8 41,873 55,607
2010.............................. 21 73.1 47 47 49,656 44,805
2011.............................. 17.6 76.5 44.9 48.2 44,333 47,523
2012.............................. 14.6 78.7 48.6 45.6 31,711 62,590
2013.............................. 14.4 80.5 46.8 46.9 43,530 69,072
2014.............................. 12.9 82 42.4 52 7,606 9,725
----------------------------------------------------------------------------------------------------------------
Source: Roper Center IPOLL database, with all calculations performed by CRS.
Notes: In general, the question about Congress was: ``Do you approve or disapprove of the way Congress is
handling its job?'' In general, the question about the President was: ``Do you approve or disapprove of the
way [name of President] is handling his job as President?''
Table B-4. Annual Average Job Approval--Congress Versus Own Representative
1974-2014
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sample sizes Sample sizes
Percent for for own
Percent Percent Percent disapproving congressional Representative
Survey Year approving disapproving approving own own approval- approval-
Congress Congress Representative Representative disapproval disapproval
data data
--------------------------------------------------------------------------------------------------------------------------------------------------------
1970........................................................... .......... ............ .............. .............. ............. ..............
1971........................................................... .......... ............ .............. .............. ............. ..............
1972........................................................... .......... ............ .............. .............. ............. ..............
1973........................................................... .......... ............ .............. .............. ............. ..............
1974........................................................... 37.30 41.40 .............. .............. 4,797 ..............
1975........................................................... 31.80 51.50 .............. .............. 6,248 ..............
1976........................................................... 24.00 58.00 .............. .............. 1,538 ..............
1977........................................................... 34.70 44.40 .............. .............. 10,685 ..............
1978........................................................... 29.60 50.60 60.70 21.00 7,524 4,395
1979........................................................... 19.00 61.00 .............. .............. 1,511 ..............
1980........................................................... 28.80 53.30 61.00 18.00 3,269 1,769
1981........................................................... 36.10 33.70 .............. .............. 2,934 ..............
1982........................................................... 29.00 54.00 .............. .............. 1,504 ..............
1983........................................................... 33.00 43.00 .............. .............. 1,517 ..............
1984........................................................... .......... ............ .............. .............. ............. ..............
1985........................................................... 53.40 35.90 .............. .............. 3,495 ..............
1986........................................................... 42.00 37.00 59.00 23.00 1,552 2,006
1987........................................................... 50.40 43.60 .............. .............. 2,518 ..............
1988........................................................... 42.60 48.60 .............. .............. 2,508 ..............
1989........................................................... 47.40 46.40 71.00 18.00 8,867 1,513
1990........................................................... 30.50 61.30 56.80 28.80 16,702 8,732
1991........................................................... 37.60 52.20 60.40 27.00 13,189 5,839
1992........................................................... 20.20 72.20 52.30 33.90 12,282 10,464
1993........................................................... 27.50 62.10 59.50 26.20 23,776 2,844
1994........................................................... 27.20 63.40 55.30 31.50 34,883 9,844
1995........................................................... 34.50 53.60 60.00 22.00 47,253 1,190
1996........................................................... 31.90 57.60 61.00 23.00 32,402 1,479
1997........................................................... 39.50 49.40 .............. .............. 37,889 ..............
1998........................................................... 48.20 41.60 67.40 18.10 71,451 11,564
1999........................................................... 43.10 47.00 70.00 21.00 48,667 1,505
2000........................................................... 46.30 41.40 .............. .............. 15,101 ..............
2001........................................................... 51.90 35.20 .............. .............. 34,866 ..............
2002........................................................... 51.30 36.80 65.70 24.20 36,271 3,518
2003........................................................... 44.20 45.00 .............. .............. 25,374 ..............
2004........................................................... 41.80 48.70 .............. .............. 18,213 ..............
2005........................................................... 35.30 55.20 59.10 27.50 47,372 6,262
2006........................................................... 28.80 63.20 56.30 29.00 65,418 24,651
2007........................................................... 29.20 61.40 54.70 24.00 65,164 5,350
2008........................................................... 19.70 72.40 48.70 29.30 36,733 5,471
2009........................................................... 29.50 61.70 .............. .............. 41,873 ..............
2010........................................................... 21.00 73.10 45.70 39.20 49,656 11,680
2011........................................................... 17.60 76.50 39.00 33.00 44,333 1,000
2012........................................................... 14.60 78.70 .............. .............. 31,711 ..............
2013........................................................... 14.40 80.50 44.20 37.90 43,530 4,295
2014........................................................... 12.90 82.00 .............. .............. 7,606 ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Roper Center IPOLL database, with all calculations performed by CRS.
Notes: In general, the question about Congress was: ``Do you approve or disapprove of the way Congress is handling its job?'' In general, the question
about one's own Representative was: ``Do you approve or disapprove of the way your own Representative is handling his or her job?''
Table B-5. Annual Average Percentage Favoring Reelecting Own Representative Versus Reelecting Congress
1978-2014
----------------------------------------------------------------------------------------------------------------
Percent Sample sizes Sample
Percent favor favor Percent Percent for reelecting sizes for
Survey year reelecting own electing favoring opposing own reelecting
Representative someone reelecting reelecting Representative Congress
else Congress Congress data data
----------------------------------------------------------------------------------------------------------------
1970............................ .............. .......... .......... .......... .............. ..........
1971............................ .............. .......... .......... .......... .............. ..........
1972............................ .............. .......... .......... .......... .............. ..........
1973............................ .............. .......... .......... .......... .............. ..........
1974............................ .............. .......... .......... .......... .............. ..........
1975............................ .............. .......... .......... .......... .............. ..........
1976............................ .............. .......... .......... .......... .............. ..........
1977............................ .............. .......... .......... .......... .............. ..........
1978............................ 46.00 19.00 .......... .......... 1,451 ..........
1979............................ .............. .......... .......... .......... .............. ..........
1980............................ .............. .......... .......... .......... .............. ..........
1981............................ .............. .......... .......... .......... .............. ..........
1982............................ .............. .......... .......... .......... .............. ..........
1983............................ .............. .......... .......... .......... .............. ..........
1984............................ .............. .......... .......... .......... .............. ..........
1985............................ .............. .......... .......... .......... .............. ..........
1986............................ .............. .......... .......... .......... .............. ..........
1987............................ .............. .......... .......... .......... .............. ..........
1988............................ .............. .......... .......... .......... .............. ..........
1989............................ .............. .......... .......... .......... .............. ..........
1990............................ 40.20 47.10 20.00 67.00 4,647 960
1991............................ .............. .......... .......... .......... .............. ..........
1992............................ 50.20 35.30 33.90 51.20 25,727 13,590
1993............................ 54.10 29.90 38.50 46.50 5,147 2,025
1994............................ 44.80 40.30 34.30 52.60 27,721 10,666
1995............................ 59.00 29.30 36.70 50.00 3,203 3,203
1996............................ 60.60 19.40 50.30 31.40 9,987 6,595
1997............................ 53.30 31.20 50.60 32.20 4,415 2,889
1998............................ 56.30 28.00 40.80 41.60 16,819 11,598
1999............................ 51.30 37.10 41.00 47.00 2,051 846
2000............................ 61.20 16.20 50.60 31.60 9,199 3,522
2001............................ 64.00 20.00 51.00 31.00 814 814
2002............................ 56.70 25.20 43.60 39.60 6,481 4,158
2003............................ 64.00 22.00 51.00 35.00 1,004 1,004
2004............................ 56.90 23.80 51.00 33.00 1,883 1,013
2005............................ 53.60 32.60 40.20 46.20 3,192 2,190
2006............................ 51.70 32.30 34.20 52.20 20,369 20,455
2007............................ 60.00 31.80 41.40 51.00 1,521 1,521
2008............................ 59.10 24.70 37.30 49.00 4,179 4,179
2009............................ 41.50 39.60 34.00 53.00 8,547 1,516
2010............................ 41.70 44.10 25.70 62.70 38,898 22,483
2011............................ 40.60 47.40 17.20 73.00 12,230 9,183
2012............................ 44.50 43.20 37.00 54.00 6,254 1,536
2013............................ 36.20 54.30 29.00 65.40 4,992 3,423
2014............................ 35.30 54.40 19.00 70.00 3,081 1,018
----------------------------------------------------------------------------------------------------------------
Source: Roper Center IPOLL database, with all calculations performed by CRS.
Notes: In general, the question about one's own Representative was: ``Right now, do you think your
representative in Congress should be re-elected or do you think another candidate would do a better job?'' In
general, the question about reelecting the Congress was: ``Regardless about how you feel about your own
Representative, would you like to see most members of Congress re-elected in the next Congressional election,
or not?''
Table B-6. Annual Average Congressional Job Approval Versus Trust in Government
1970-2014
----------------------------------------------------------------------------------------------------------------
Percent Percent Sample sizes
trust trust for Sample
Percent Percent government government congressional sizes for
Survey year approving disapproving always or some of approval- trust in
Congress Congress most of the time disapproval government
the time or never data data
----------------------------------------------------------------------------------------------------------------
1970............................... .......... ............ 52.97 44.02 ............. 1,497
1971............................... .......... ............ .......... .......... ............. ..........
1972............................... .......... ............ 53.01 45.02 ............. 2,279
1973............................... .......... ............ .......... .......... ............. ..........
1974............................... 37.30 41.40 35.26 63.11 4,797 3,988
1975............................... 31.80 51.50 .......... .......... 6,248 ..........
1976............................... 24.00 58.00 35.15 61.71 1,538 8,999
1977............................... 34.70 44.40 33.53 62.96 10,685 3,310
1978............................... 29.60 50.60 34.43 63.76 7,524 7,053
1979............................... 19.00 61.00 32.50 65.20 1,511 12,851
1980............................... 28.80 53.30 32.58 64.68 3,269 7,554
1981............................... 36.10 33.70 .......... .......... 2,934 ..........
1982............................... 29.00 54.00 32.98 65.03 1,504 1,401
1983............................... 33.00 43.00 47.10 49.42 1,517 2,238
1984............................... .......... ............ 45.23 52.75 ............. 3,270
1985............................... 53.40 35.90 43.23 54.94 3,495 9,064
1986............................... 42.00 37.00 41.50 56.61 1,552 4,856
1987............................... 50.40 43.60 42.52 55.74 2,518 9,588
1988............................... 42.60 48.60 39.56 59.29 2,508 5,912
1989............................... 47.40 46.40 38.96 59.07 8,867 3,758
1990............................... 30.50 61.30 33.92 64.03 16,702 20,826
1991............................... 37.60 52.20 35.46 63.71 13,189 7,611
1992............................... 20.20 72.20 23.39 75.15 12,282 11,866
1993............................... 27.50 62.10 20.11 78.86 23,776 14,632
1994............................... 27.20 63.40 21.74 77.95 34,883 18,179
1995............................... 34.50 53.60 20.98 78.26 47,253 13,535
1996............................... 31.90 57.60 28.48 69.84 32,402 8,140
1997............................... 39.50 49.40 27.16 72.13 37,889 6,462
1998............................... 48.20 41.60 28.60 69.91 71,451 16,442
1999............................... 43.10 47.00 31.96 67.20 48,667 22,349
2000............................... 46.30 41.40 34.47 64.50 15,101 10,911
2001............................... 51.90 35.20 44.70 54.17 34,866 14,930
2002............................... 51.30 36.80 42.19 56.32 36,271 18,921
2003............................... 44.20 45.00 37.86 61.16 25,374 10,099
2004............................... 41.80 48.70 36.65 61.63 18,213 7,323
2005............................... 35.30 55.20 30.54 68.36 47,372 6,897
2006............................... 28.80 63.20 32.04 67.01 65,418 9,189
2007............................... 29.20 61.40 25.40 74.09 65,164 7,857
2008............................... 19.70 72.40 22.31 75.61 36,733 5,396
2009............................... 29.50 61.70 26.02 72.40 41,873 11,337
2010............................... 21.00 73.10 21.03 77.95 49,656 22,256
2011............................... 17.60 76.50 21.01 77.71 44,333 13,556
2012............................... 14.60 78.70 .......... .......... 31,711 ..........
2013............................... 14.40 80.50 19.83 78.81 43,530 11,918
2014............................... 12.90 82.00 .......... .......... 7,606 ..........
----------------------------------------------------------------------------------------------------------------
Source: Roper Center IPOLL database, with all calculations performed by CRS.
Notes: In general, the question about Congress was: ``Do you approve or disapprove of the way Congress is
handling its job?'' In general, the question about trust was: ``Generally speaking, how much of the time do
you think you can trust the government in Washington to do what is right--just about always, most of the time,
or only some of the time, or hardly ever?''
Table B-7. Correlates with Annual Percentage Congressional Job Approval
1974-2014
------------------------------------------------------------------------
Pearson
correlates with
annual
Political and economic variables percentage
congressional
job approval
------------------------------------------------------------------------
Annual percent trust government always or most of time 0.707
Annual percent Presidential job approval.............. 0.665
Annual percent unemployment (BLS)..................... ^0.457
Annual percent change in real GDP (BEA)............... 0.217
Annual percent change in unemployment (BLS)........... ^0.060
Annual Index of Consumer Sentiment*................... 0.652
Annual percent current financial situation better off 0.665
than year ago........................................
Annual percent expected change in financial situation 0.738
better off than year ago.............................
Annual percent expected change in family income up in 0.696
1 or 2 years.........................................
Annual percent saying government doing a good job 0.741
fighting inflation and unemployment..................
Annual percent saying current business conditions 0.252
better now than year ago.............................
Annual percent expected change in prices same or down 0.145
in next 12 months....................................
Annual percent saying unemployment will be less in ^0.089
next 12 months.......................................
------------------------------------------------------------------------
*The Index of Consumer Sentiment is constructed using the results of
five of the survey's questions: Present and Future Personal Financial
Situation, Present and Future Business Conditions, and Good/Bad Time
to Purchase Durable Goods. For a detailed description of the
construction of the index, see ``Index Calculation,'' at Survey of
Consumers Web site at http://www.sca.isr.umich.edu/survey-info.php.
Source: Unemployment and Percent Change in Unemployment from U.S. Bureau
of Labor Statistics (BLS), Percent Change in Real GDP from U.S. Bureau
of Economic Analysis (BEA), Trust in Government and Presidential Job
Approval from Roper Center IPOLL database; CRS computed yearly
percentage estimates. All economic attitudinal variables from Survey
of Consumers, University of Michigan.
Comparing Modern Congresses: Can Productivity Be Measured?
Jacob R. Straus
Analyst on the Congress
----------
Historically, scholars, the media, and even Members of
Congress have attempted to compare the productivity of
one Congress against another, often using a variety of
methods. This report examines the three most common
methods--legislation introduced, public laws enacted,
and landmark legislation--which each demonstrate a
different assessment of congressional activity over a
2-year period. The result of this analysis shows that
the three metrics, when used alone, may fail to account
for the complexity inherent in developing policy in the
American system.
Introduction
In September 2012, Representative Steny Hoyer, the House
minority whip, issued a press release calling the 112th
Congress (2011-2013) the ``Least Productive in a Generation.''
\1\ To support his statement, he quoted a New York Times
article on the subject, which stated:
---------------------------------------------------------------------------
\1\ U.S. Congress, House, Office of the Democratic Whip,
``Republican-Led 112th Congress Least Productive in a Generation,''
press release, 112th Cong., 2d sess., September 19, 2012, at http://
www.democraticwhip.gov/print/15750.
The 112th Congress is set to enter the Congressional record
books as the least productive body in a generation, passing a
mere 173 public laws as of last month. That was well below the
906 enacted from January 1947 through December 1948 by the body
President Harry S. Truman referred to as the ``do-nothing''
Congress, and far fewer than even a single session of many
prior Congresses.\2\
---------------------------------------------------------------------------
\2\ Ibid., quoting Jennifer Steinhauer, ``Congress Nearing End of
Session Where Partisan Input Impeded Output,'' The New York Times,
September 18, 2012, at http://www.nytimes.com/2012/09/19/us/politics/
congress-nears-end-of-least-productive-session.html_r=0.
Representative Hoyer was not alone in his criticism of
Congress. Speaker John Boehner, in an interview with CBS News
reporter Bob Schieffer on Face the Nation, answered a question
about whether the 112th Congress was the least productive in
---------------------------------------------------------------------------
history.
Schieffer: Any way you cut it, and whoever's fault it is,
you have presided over what [is] perhaps the least productive
and certainly one of the least popular Congresses in history.
Boehner: Well, Bob, we should not be judged on how many new
laws we create. We ought to be judged on how many laws that we
repeal. We've got more laws than the administration could ever
enforce. And so we don't do commemorative bills on the floor.
We don't do all that nonsense. We deal with what the American
people want us to deal with. Unpopular? Yes. Why? We're in a
divided government. We're fighting for what we believe in.
Sometimes, you know, the American people don't like this
mess.\3\
---------------------------------------------------------------------------
\3\ Speaker of the House of Representatives John Boehner, interview
by Bob Schieffer, Face the Nation, CBS, transcript, July 21, 2013, at
http://www.cbsnews.com/new/face-the-nation- transcripts-july-21-2013-
boehner-and-snyder.
Both Representative Hoyer and Speaker Boehner highlighted
the same themes, but arrived at the label of ``unproductive''
in different ways. Why did they disagree on the productivity of
Congress? While politics plays a role in perceptions of
Congress as a productive or unproductive institution, political
viewpoints are not the only factor that have caused recent
Congresses to be labeled as ``do-nothing'' Congresses.\4\
---------------------------------------------------------------------------
\4\ For example, see Alan Silverleib, ``Obama, Truman, and the `Do-
Nothing' Congress,'' CNN.com, December 27, 2011, at http://www.cnn.com/
2011/12/27/politics/obama-do-nothing- congress; Allison Brennan and
Halimah Abdullah, ``Congress: Same Hours, Half the Work,'' CNN.com,
June 19, 2012, at http://www.cnn.com/2012/06/19/politics/congress-
productivity; Philip Bump, ``Here's Yet Another Way of Looking at How
Unproductive Congress Is,'' washingtonpost.com, May 17, 2014, at http:/
/www.washingtonpost.com/blogs/the-fix/wp/2014/05/17/heres-yet-another-
way-of-looking-at-how-unproductive-congress-is; Derek Willis, ``A Do-
Nothing Congress? Well, Pretty Close,'' TheNewYorkTimes.com, May 28,
2014, at http://nyti.ms/1mAeyBj; and Aaron Blake, ``Gridlock in
Congress? It's Probably Even Worse Than You Think,''
washingtonpost.com, May 29, 2014, at http://www.washingtonpost.com/
blogs/the-fix/wp/2014/05/29/gridlock-in-congress-its-probably-even-
worse-than-you-think.
---------------------------------------------------------------------------
Labeling a particular Congress ``do-nothing'' is not a new
idea. As Representative Hoyer alluded to, the label was first
applied to the 80th Congress (1947-1949) by President Harry
Truman. The 80th Congress was the first post-war and post-New
Deal Congress. It was also the first Republican-controlled
Congress since 1931. The policy orientation of the Republican
majority, coupled with the goals of a new, previously unelected
President, provided the basis for disagreements between the
Truman White House and Congress. Throughout the 80th Congress,
Republicans sought to roll back aspects of the New Deal, while,
at the same time, President Truman wanted to expand its
scope.\5\ It was against this backdrop that Truman coined the
term ``do-nothing'' Congress to describe what he perceived was
a Congress mired in partisan opposition and incapable of making
decisions or meeting for a long enough period of time to
introduce, debate, and pass legislation.\6\
---------------------------------------------------------------------------
\5\ Barton J. Bernstein, ``Introduction,'' in Politics and Policies
of the Truman Administration, ed. Barton J. Bernstein (Chicago:
Quadrangle Books, 1970), pp. 3-14
\6\ Barton J. Bernstein, ``The Ambiguous Legacy: The Truman
Administration and Civil Rights,'' in Politics and Policies of the
Truman Administration, p. 290; and David McCullough, Truman (New York:
Touchstone Simon & Schuster, 1992).
---------------------------------------------------------------------------
Since its first use by Truman, the term ``do-nothing'' has
become part of popular political culture, as a catchy synonym
for unproductive, and has been applied to succeeding Congresses
with varying success as a synonym for political agreement or
disagreement. Reality dictates, however, that all Congresses
cannot be ``do-nothing.'' If that were the case, important
legislation enacted and other congressional actions occurring
since the 80th Congress would not have taken place. Whether a
specific Congress should be labeled as unproductive, however,
is debatable.
The decision to apply a label of productivity to a given
Congress can be based on attempts to quantify congressional
activity. For example, in a 2012 Roll Call article, journalists
Jonathan Strong and Humberto Sanchez wrote that the 112th
Congress was ``on track to be the least productive in modern
history,'' and, as of September 13, 2012, they reported that it
had produced only 90 laws on 636 House passed measures and 635
Senate passed measures.\7\
---------------------------------------------------------------------------
\7\ Jonathan Strong and Humberto Sanchez, ``Congress on Pace to Be
Least Productive.'' Roll Call, September 13, 2012, at http://
www.rollcall.com/features/Guide-to-Congress_2012/guide/Congress-On-
Pace-to-Be-Least-Productive-217538-1.html.
---------------------------------------------------------------------------
Senator Tom Coburn used the lens of public perception when
he attempted to define productivity in the 2012 edition of his
Wastebook, which highlighted examples of what the Senator
believed were ``wasteful and low-priority spending.'' \8\ In
his summary of the 112th Congress, Senator Coburn stated that
``Congress is on pace to make history [for] the least
productive year since 1947, with just 61 bills passed and made
law in 2012 to date.'' Senator Coburn also observed that
``[t]he inability of Congress to get things done has resulted
in the lowest public approval in the nearly four decades the
rating has been measured by Gallup. A stunning 83 percent
disapprove of `the way Congress is doing its job.' '' \9\
However, productivity--the subject of this paper--is defined,
Senator Coburn understood that public perception of
congressional activity is part of judging one Congress against
another.
---------------------------------------------------------------------------
\8\ U.S. Congress, Senator Tom Coburn, ``Coburn Releases Annual
Wastebook Highlighting Most Egregious Spending of 2013,'' press
release, December 17, 2013, at http://www.coburn.senate. gov/public/
index.cfm/pressreleases?ContentRecord_id=e7359436-1572-414e-8acc-
0222cad1c7d5.
\9\ U.S. Congress, Senator Tom Coburn, Wastebook 2012, October
2012, at http://www.coburn. senate.gov/public/
index.cfm?a=Files.Serve&File_id=b7b23f66-2d60-4d5a-8bc5-8522c7e1a40e.
---------------------------------------------------------------------------
The desire to assess the productivity of Congress predates
even the 80th Congress. The Founding Fathers believed that
enacting legislation for many public policy issues would be a
difficult and incremental task. In Federalist 63, James Madison
described two purposes of the legislative branch of government:
The objects of government may be divided into two general
classes: the one depending on measures which have singly an
immediate and sensible operation; the other depending on a
succession of well-chosen and well-connected measures, which
have a gradual and perhaps unobserved operation.\10\
---------------------------------------------------------------------------
\10\ James Madison, ``Federalist No. 63, The Senate Continued,''
The Federalist Papers, at http://thomas.loc.gov/home/histdox/
fed_63.html.
Dealing with the first purpose is potentially easier, with
universal support and little opposition to the enactment of new
public policies. Proposing legislation that focuses on the
second purpose takes public and private deliberation and
compromise over time--potentially over multiple Congresses--to
come to a workable policy solution. This latter purpose might
be thought of as great objects or landmark legislation.
In many ways, the modern Congress operates with both
purposes in mind. Many bills and resolutions pass the House and
Senate with little or no opposition. Other matters, however,
require the use of significant floor time and may not be
accomplished in a single Congress. For example, proposals to
create universal or near-universal access to health care
started long before the Affordable Care Act was considered by
the 111th Congress (2009-2011).\11\
---------------------------------------------------------------------------
\11\ Mark J. Oleszek and Walter J. Oleszek, ``Legislative Sausage-
Making: Health Care Reform in the 111th Congress,'' in Party and
Procedure in the United States Congress, ed. Jacob R. Straus (Lanham,
MD: Rowman & Littlefield, 2012), pp. 253-286.
---------------------------------------------------------------------------
Additionally, by many measures, the 111th Congress was
considered successful, with the passage of the Affordable Care
Act and other Obama administration priorities.\12\ In the
November 2010 election, however, the Republicans campaigned
against many of these legislative actions and won control of
the House and cut the Democratic majority in the Senate.\13\
Examining only the 111th Congress, some might conclude that the
Democrats were punished for being productive.\14\ Others might
suggest that having Democratic control of the House, Senate,
and White House led to policies that were out of step with the
American public. Still others might conclude that the very
democratic nature of American political institutions inherently
leads to the use of aggressive power to pass the majority
party's agenda, regardless of which party is in the
majority.\15\
---------------------------------------------------------------------------
\12\ David A. Fahrenthold, Philip Rucker, and Felicia Sonmez,
``Stormy 111th Congress Was Still the Most Productive in Decades,'' The
Washington Post, December 23, 2010, p. A3, at http://
www.washingtonpost.com/wp-dyn/content/article/2010/12/22/
AR2010122205620_pf.html.
\13\ Andrew E. Busch, ``The 2010 Midterm Elections: An Overview,''
The Forum, vol. 8, no. 4 (January 2011), Article 2; and Matthew N.
Green, ``2010 Midterm Election,'' in The Obama Presidency: A
Preliminary Assessment, ed. Robert P. Watson, Jack Covarrubias, Tom
Lansford, and Douglas M. Brattebo (Albany, NY: State University of New
York Press, 2012), pp. 129-142.
\14\ Christopher F. Karpowitz, J. Quin Monson, Kelly D. Patterson,
and Jeremy C. Pope, ``Tea Time in America? The Impact of the Tea Party
Movement on the 2010 Midterm Elections,'' PS: Political Science &
Politics, vol. 44, no. 2 (April 2011), pp. 303-309.
\15\ Barbara Sinclair, ``Question: What's Wrong with Congress?
Answer: It's a Democratic Legislature,'' Boston University Law Review,
vol. 89, no. 2 (April 2009), p. 393.
---------------------------------------------------------------------------
The legislative branch lends itself to comparison precisely
because its processes and outcomes can be quantified. Over
time, the need to understand congressional productivity and the
desire to compare one Congress against another appears to have
increased. Regardless of where an individual might stand on the
popularity or democratic proclivities of a given Congress,
citizens seem to be more dissatisfied today.\16\
---------------------------------------------------------------------------
\16\ Gallup, ``Congressional Job Approval Ratings Trend (1974-
Present),'' Congress and the Public, at http://www.gallup.com/poll/
1600/congress-public.aspx. See also the companion CRS centennial report
in this volume, Understanding Congressional Approval: Public Opinion
from 1974 to 2014, by Jessica C. Gerrity.
---------------------------------------------------------------------------
To better understand the metrics used to compare one
Congress against another, this report asks the question: ``What
is productivity?'' The report begins by defining congressional
productivity. Next, the three most common comparative methods
are discussed in detail, including advantages and disadvantages
of these measures. Following this analysis, a brief discussion
of other potential measures is provided. Finally, the report
ends with an analysis of factors that could affect the
comparison of congressional productivity over time.
How Has Productivity Been Measured?
According to the Merriam-Webster Dictionary, productivity
is defined as ``the rate at which goods are produced or work is
completed.'' \17\ In the business world, understanding
productivity can be a relatively easy task. For example, if a
marketing firm is able to drive new customers to a client's
business, the firm is often considered to be a productive
marketer.\18\
---------------------------------------------------------------------------
\17\ Merriam-Webster Dictionary, ``Productivity,'' at http://
www.merriam-webster.com/dictionary/productivity.
\18\ Roland T. Rust, Tim Ambler, Gregory S. Carpenter, V. Kumar,
and Rajendra K. Srivastava, ``Measuring Marketing Productivity: Current
Knowledge and Future Directions,'' Journal of Marketing, vol. 68, no. 4
(October 2004), pp. 79-86.
---------------------------------------------------------------------------
In the legislative context, defining productivity is more
difficult. The legislative process is inherently about words
and ideas advocated for by people, both Members of Congress and
constituents. Congress is structured to make public policy from
disparate inputs in a limited amount of time. Rather than
negotiate and pass laws behind closed doors, Congress is
instead asked to conduct its business in a responsible,
deliberative, inclusive, and public manner.\19\ Consequently,
the desire to assess a particular Congress and its productivity
has resulted in disagreement on the best and most effective
metrics.
---------------------------------------------------------------------------
\19\ Barbara Sinclair, ``Question: What's Wrong with Congress?
Answer: It's a Democratic Legislature,'' Boston University Law Review,
p. 389.
---------------------------------------------------------------------------
The disagreement extends to studies comparing Congresses,
which can be divided into two groups: studies of individual
Members of Congress, which are described briefly here, and
studies of Congress as an institution, which concern the
balance of this report.
Assessing Individual Members of Congress
Many studies have focused on individual legislators and
either their success or productivity. It is important to note
that productivity and success are not--and should not be--
interchangeable terms. Whereas studies of legislative success
primarily attempt to determine whether individual Members are
able to implement a specific policy agenda, legislative
productivity attempts to understand how individual Members of
Congress compare across time.
member success
Legislative success is a term that is generally used to
describe the ability of an individual Member to promote
measures that meet his or her stated political agenda. For
Members, individual success can be difficult to quantify
because what is successful to one legislator might be a failure
to another.\20\ Because of the personal nature of success, some
studies have used reelection as a proxy for being a successful
legislator.\21\ Other studies have used the passage of bills
sponsored by a legislator as the ultimate measure of success
within the House or Senate.\22\ Still others have examined
whether ``positive action'' (e.g., bill movement through the
legislative process) marks success.\23\ Regardless of the
definition of success, the focus of this field of study on the
goals of an individual Member of Congress makes comparisons
across Congresses impossible.
---------------------------------------------------------------------------
\20\ For example, see Barbara Sinclair, ``An Effective Congress and
Effective Members: What Does It Take?,'' PS: Political Science &
Politics, vol. 29, no. 3 (1996), pp. 435-439.
\21\ David R. Mayhew, Congress: The Electoral Connection (New
Haven, CT: Yale University Press, 1974).
\22\ Mark C. Ellickson, ``Pathways to Legislative Success: A Path
Analytic Study of the Missouri House of Representatives,'' Legislative
Studies Quarterly, vol. 17, no. 2 (May 1992), pp. 285-302.
\23\ William Anderson, Janet M. Box-Steffensmeier, and Valeria N.
Sinclair-Chapman, ``The Keys to Legislative Success in the U.S. House
of Representatives,'' Legislative Studies Quarterly, vol. 28, no. 3
(August 2003), pp. 357-386; and Michael Edmund O'Neill, ``A Legislative
Scorecard for the United States Senate: Evaluating Legislative
Productivity,'' Journal of Legislation, vol. 36, no. 2 (2010), pp. 297-
374.
---------------------------------------------------------------------------
Studies of individual Members' productivity focus either on
productivity as a factor in reelection or, more commonly, on
trying to ignore reelection to understand Members' behavior. As
an example of the former, political scientist Robert E. Hogan
studied how elections reward or punish legislators on their
policy activities while in office. He found that incumbent
legislators often struggled to determine constituents' policy
preferences. As a result, a Member could be punished
electorally for misunderstanding or ignoring the partisan base
and attempting to connect with the average (median) voter in
the district.\24\
---------------------------------------------------------------------------
\24\ Robert E. Hogan, ``Policy Responsiveness and Incumbent
Reelection in State Legislatures,'' American Journal of Political
Science, vol. 52, no. 4 (2008), pp. 910-925.
---------------------------------------------------------------------------
Other studies have explicitly examined the productivity for
individual Members without using reelection as the Member's
underlying goal. Perhaps the most famous examination of a
Member and his desire for good public policy over potential
reelection was Richard Fenno's examination of Senator Claiborne
Pell. Fenno described Pell as an individual who had ``put
together such a strong Senate record of legislative
accomplishment . . . that he inoculated himself against the
late-blooming, media-generated charge of ineffectiveness,''
\25\ and was consistently reelected.
---------------------------------------------------------------------------
\25\ Richard F. Fenno, Jr., Senators on the Campaign Trail: The
Politics of Representation (Norman, OK: University of Oklahoma Press,
1996), pp. 239 and 254.
---------------------------------------------------------------------------
member productivity
Another study analyzed the behavior and productivity of
older legislators. This study examined ``whether old
legislators were more or less productive than younger
legislators in sponsoring legislation'' by assessing ``their
relative effectiveness in seeing such legislation through to
enactment.'' This study found that, while older legislators had
an increase in absences and introduced fewer bills than their
younger colleagues, they had a higher ratio of bills
passed.\26\ The study potentially suggests that, as Members age
and their electoral concerns lessen, they look for opportunity
to introduce legislation where they feel they can succeed
instead of introducing bills on a variety of subjects. Taking
the example of long-serving Members further, since they
introduce fewer bills, they might be seen as less productive.
On the other hand, since their success rate in enacting bills
is higher, they might be seen as more productive. This
illustrates the difficulty in determining whether one
legislator is more productive than another.
---------------------------------------------------------------------------
\26\ Alfred P. Fengler, ``Legislative Productivity of Elderly
Legislators,'' Polity, vol. 18, no. 2 (1980), p. 328.
---------------------------------------------------------------------------
Assessing the Institution
Assessing the success or productivity of individual Members
of Congress does not provide a clear way to compare the
productivity of one Congress against another. The comparison of
Congresses is the goal of many studies, however, but there is
no agreement on what quantitative measures might be best for
understanding the legislative process and evaluating
congressional output over a 2-year period.
Some of the first examinations of legislative productivity
focused on counting the number of significant pieces of
legislation enacted during a Congress. The most famous of these
studies was conducted by political scientist David Mayhew in
his effort to understand divided government--when one political
party controls the White House and one political party controls
at least one Chamber of Congress. To gather his list of seminal
laws, Mayhew consulted The New York Times and The Washington
Post end-of-session and end-of-Congress wrap-up articles to
determine the most important pieces of legislation enacted
during a particular Congress.\27\ Mayhew's lists, which are
discussed below in more detail in ``Landmark Legislation,''
resulted in other studies of significant legislation, which all
remarked on the impact of divided government on the enactment
of public policy and congressional productivity.\28\
---------------------------------------------------------------------------
\27\ David R. Mayhew, Divided We Govern: Party Control, Lawmaking,
and Investigations 1946-1990 (New Haven, CT: Yale University Press,
1991), pp. 34-50.
\28\ See, for example, Sean Q. Kelly, ``Divided We Govern? A
Reassessment,'' Polity, vol. 25, no. 3 (spring 1993), pp. 475-484; and
William Howell, Scott Adler, Charles Cameron, and Charles Riemann,
``Divided Government and the Legislative Productivity of Congress,
1945-94,'' Legislative Studies Quarterly, vol. 25, no. 2 (May 2000),
pp. 285-312.
---------------------------------------------------------------------------
Understanding significant or landmark legislation is only
one way to quantify congressional activities. The legislative
process lends itself to many potential comparative measures. As
political scientists John Owens and Burdett Loomis highlighted:
``The legislative process in Congress is deliberately
cumbersome.'' Further, they noted that the legislative process
contains many steps. These include:
(1) bill introduction; (2) referral to committee(s) and
subcommittee(s); (3) requests for reports from executive
agencies; (4) hearings; (5) mark-ups (bill-writing); (6)
reports to the House or Senate; (7) requests for a special
procedural rule in the [H]ouse . . . or consideration in the
Senate from the majority leader; (8) floor debate in both
chambers . . .; (9) a House-Senate conference committee to
resolve House-Senate differences; and (10) the presidential
signature or veto, which if denied requires even more
steps.\29\
---------------------------------------------------------------------------
\29\ John E. Owens and Burdett A. Loomis, ``Qualified
Exceptionalism: The US Congress in Comparative Perspective,'' Journal
of Legislative Studies, vol. 12, no. 3/4 (2006), p. 268.
Each step in this process provides an opportunity to
collect data and compare one Congress against another. While
each step in the legislative process can tell part of the story
of congressional productivity, some measures potentially tell a
more interesting story than others. Congressional literature
has not come to a consensus on how to measure institutional
productivity.
Measures of Productivity
Since President Truman first applied the ``do-nothing''
label to the 80th Congress, efforts have been made to measure
the productivity of Congress. From a review of political
science research, three main measures emerged as the most
common to evaluate the productivity of Congress. These are:
legislation introduced;
public laws enacted; and
landmark legislation.
Individually, each measure has potential advantages and
disadvantages for assessing congressional productivity. Each
measure most clearly represents one of the concepts referenced
in the Introduction. These were Senator Coburn's concept of
public perception in his Wastebook (legislation introduced);
President Truman's ``do-nothing'' label and political agreement
or disagreement (public laws); or James Madison's concept of
great objects in his description of the legislative process
(landmark legislation). While each concept is more clearly tied
to one measure, each also has elements of the other measures
present in its view of Congress.
Legislation Introduced
Each Congress, thousands of bills and resolutions are
introduced in the House and Senate. Members introduce
legislation for a variety of purposes. Some Members introduce
bills and resolutions to claim credit for a public policy idea
\30\ or to signal to constituents their position on an
issue.\31\ Other Members introduce legislation to further their
public policy agendas.\32\ Using legislative introduction could
provide a way to examine the productivity of any given
Congress. Using the number of bills and resolutions introduced
could also provide a glimpse into how the public perceives
congressional productivity. When more bills are introduced,
Congress might be perceived as more productive.
---------------------------------------------------------------------------
\30\ Scott Thomas and Bernard Grofman, ``The Effects of
Congressional Rules About Bill Cosponsorship on Duplicate Bills:
Changing Incentives for Credit Claiming,'' Public Choice, vol. 75, no.
1 (1993), pp. 93-98.
\31\ Gary W. Cox and Mathew D. McCubbins, Setting the Agenda:
Responsible Party Government in the U.S. House of Representatives (New
York: Cambridge University Press, 2005); Stephen Jessee and Neil
Malhotra, ``Are Congressional Leaders Middlepersons or Extremists?
Yes,'' Legislative Studies Quarterly, vol. 35, no. 3 (August 2010), pp.
361-392; and James M. McCormick and Neil J. Mitchell, ``Commitments,
Transnational Interests, and Congress: Who Joins the Congressional
Human Rights Caucus?,'' Political Research Quarterly, vol. 60, no. 4
(2007), pp. 579-592.
\32\ Richard F. Fenno, Jr., Senators on the Campaign Trail; and
James L. Payne, ``Show Horses and Work Horses in the U.S. House of
Representatives,'' Polity, vol. 12, no. 3 (1980), p. 429.
---------------------------------------------------------------------------
Legislative introduction might be a proxy for congressional
productivity. An examination of the number of measures
introduced highlights the legislative activity of Congress and
how often Members of Congress decide to initiate the
legislative process. While few bills and resolutions will be
debated and voted on, the mere process of introduction is one
of the essential parts of a Member's responsibility. Without
the introduction of legislation, the process of creating new
laws cannot begin.
An examination of bill introduction as a measure of
potential productivity reveals variation over in the number of
bills and resolutions introduced between the 80th Congress and
the 112th Congress. Using the ``Resume of Congressional
Activity,'' published in the Congressional Record at the end of
each session of Congress, data were collected on the number of
bills and resolutions introduced in the House and Senate.
Figure 1 shows the total number of measures introduced between
the 80th and 112th Congresses.
As shown in Figure 1, the number of bills and resolutions
introduced in the House and Senate ranged from 7,400 total
measures in the 104th Congress (1995-1997) to 29,133 measures
in the 90th Congress (1967-1969). In the House, the fewest
measures were introduced in the 104th Congress (4,739) and the
most in the 90th Congress (24,227). For the Senate the fewest
measures were introduced in the 104th Congress (2,661) and the
most (5,466) in the 91st Congress (1969-1971). Using only the
number of measures introduced, a case could be made that the
104th Congress was the least productive and the 90th Congress
was the most productive.
Several observations can be made from the introduction of
bills and resolutions. First, combining the introduction of
measures for both the House and Senate (i.e., using a total
number of measures introduced) could miss nuances between
legislative consideration in the House and Senate. Generally,
while the basic reasons to introduce a measure are the same
regardless of Chamber, House Members have been found to be
freer to introduce bills and resolutions--regardless of whether
these measures have a chance to pass the Chamber--than
Senators,\33\ who are more constrained by institutional and
political factors.\34\
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\33\ Joseph Cooper and Cheryl D. Young, ``Bill Introduction in the
Nineteenth Century: A Study of Institutional Change,'' Legislative
Studies Quarterly, vol. 14, no. 1 (February 1989), pp. 67-105.
\34\ Wendy J. Schiller, ``Senators and Political Entrepreneurs:
Using Bill Sponsorship to Shape Legislative Agendas,'' American Journal
of Political Science, vol. 39, no. 1 (February 1995), pp. 186-203.
---------------------------------------------------------------------------
Figure 1. Bills and Resolutions Introduced in the House and Senate,
80th to 112th Congress
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: U.S. Congress, Clerk of the House of Representatives,
``Resumewrite change on galleys add accents? deg. of
Congressional Activity,'' Congressional Activity, at http://
library.clerk.house.gov/resume.aspx; and U.S. Congress, Secretary of
the Senate, ``Resume of Congressional Activity,'' Statistics & Lists,
at http://www.senate.gov/pagelayout/reference/two_column_table/
Resumes.htm.
Second, historically, bills and resolutions were often
introduced as part of responding to constituents and being
visible in the district or State.\35\ For example, former
Representative Lou Frey, Jr. described his process for staking
out positions on which he could introduce, and hopefully pass,
legislation as a minority party member. He struck a balance
between responding to constituent needs, regional concerns,
lobbyists' demands, and broader national issues. Frey believed
that a combination of these introduction strategies led to
being an effective legislator.\36\
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\35\ Bruce Cain, John Ferejohn, and Morris Fiorina, The Personal
Vote: Constituency Service and Electoral Independence (Cambridge, MA:
Harvard University Press, 1987), p. 27.
\36\ Lou Frey, Jr., ``Legislative Entrepreneurship: Different
Strategies for Different Issues,'' in Inside the House: Former Members
Reveal How Congress Really Works, ed. Lou Frey, Jr., and Michael T.
Hayes (Lanham, MD: University Press of America, 2001), pp. 261-273.
---------------------------------------------------------------------------
Third, in recent years, the number of private bills
introduced has declined significantly. Private bills are
legislation that ``applies to one or more specified persons,
corporations, institutions, or other entities, usually to grant
relief when no other legal remedy is available to them. Many
private bills deal with claims against the federal government,
immigration and naturalization cases, and land titles.'' \37\
Since the 80th Congress, the number of private bills enacted
has ranged from zero in the 110th Congress (2007-2009) to 1,103
in the 81st Congress (1949-1951), with a median of 123 private
laws and an average of 269.\38\ A reduction in the number of
private bills accounts for some of the decrease in total
measures introduced. Since the 1940s, Congress has taken many
steps to reduce the need to introduce and enact private bills
through immigration reform, the empowerment of the executive
branch to mitigate certain individual claims against the
government, and a reform of congressional operations to deal
with issues that historically required private laws.\39\
---------------------------------------------------------------------------
\37\ Walter Kravitz, Congressional Quarterly's American
Congressional Dictionary, 3d ed. (Washington, DC: CQ Press, 2001), p.
187.
\38\ Norman J. Ornstein, Thomas E. Mann, Michael J. Malbin, and
Andrew Rugg, Vital Statistics on Congress (Washington, DC: The
Brookings Institution, 2013), chapter 6, table 4, at http://
www.brookings.edu/vitalstats.
\39\ Jeffrey S. Hill and Kenneth C. Williams, ``The Decline of
Private Bills: Resource Allocation, Credit Claiming, and the Decision
to Delegate,'' American Journal of Political Science, vol. 37, no. 4
(November 1993), pp. 1012-1015.
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Fourth, determining productivity based on legislative
introduction might ignore important changes to the rules of the
House that influenced the introduction of legislation. The
number of bills introduced each Congress changed with the 90th
Congress.\40\ At that time, House rules were amended to permit
bill cosponsors, but limited the number to 25.\41\
Consequently, if a measure had more than 25 cosponsors--
including the original sponsor--additional, identical bills
were introduced for each group of 24 cosponsors (in addition to
the measure's sponsor).\42\ As shown in Figure 1 at line 1, the
number of measures introduced jumped at the time of the change
in the cosponsorship rule between the 89th Congress (1965-1967)
and the 90th Congress.
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\40\ U.S. Congress, House, ``Rule XII, clause 7,'' Constitution,
Jefferson's Manual and Rules of the House of Representatives of the
United States One Hundred Twelfth Congress, 111th Cong., 2d sess., H.
Doc. 111-157 (Washington, DC: GPO, 2011), 825, p. 620.
\41\ H. Res. 42 (90th Cong.), agreed to April 25, 1967. For more
information, see Representative William Colmer et al., ``To Amend the
Rules of the House of Representatives,'' Congressional Record, vol.
113, part 8 (April 25, 1967), pp. 10708-10712. Prior to agreeing to H.
Res. 42, House rules did not permit cosponsorship or joint introduction
of legislation. For more information, see U.S. Congress, House,
Cannon's Precedents of the House of Representatives of the United
States, vol. VII, prepared by Clarence Cannon (Washington, DC: GPO,
1935), 1029, p. 160.
\42\ U.S. Congress, House, Deschler's Precedents of the United
States House of Representatives, vol. 4, prepared by Lewis Deschler,
parliamentarian, 94th Cong., 2d sess., H. Doc. 94-661 (Washington, DC:
GPO, 1976), ch. 16, 2.2, pp. 207-208.
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The House further amended cosponsorship rules late in the
95th Congress (1977-1979) to allow unlimited cosponsors on a
single piece measure.\43\ Subsequently, comparing Congresses by
the number of measures introduced became problematic. As Figure
1 shows at line 2, the number of measures introduced declined
following the 95th Congress, when the rule change became
effective. Since the rules change, when a Member wants to
cosponsor a bill or resolution after its introduction, his or
her name is published in the Congressional Record.\44\
---------------------------------------------------------------------------
\43\ H. Res. 86 (95th Congress), agreed to October 10, 1978. H.
Res. 86 did not become effective until the beginning of the 96th
Congress (1979-1981) in January 1979. For more information, see
Representative Gillis Long, ``Amending Rules Concerning Cosponsorship
of Public Bills and Resolutions,'' Congressional Record, vol. 124, part
26 (October 10, 1978), pp. 34929-34930.
\44\ For more information on bill cosponsorship, see CRS Report
RS22477, Sponsorship and Cosponsorship of House Bills, by Mark J.
Oleszek.
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The reduction in the number of measures introduced since
the 95th Congress does not necessarily indicate that Members of
Congress have become less interested in introducing bills and
resolutions. Instead, it reflects, in part, that duplicative
measures were no longer required to accept cosponsorships.
Because of cosponsorship reform, comparing Congress by the
number of measures introduced might not provide a clear picture
of what any particular Congress accomplished.
More recent rules changes in the House have also served to
reduce the introduction and consideration of date-specific
commemorations. For example, in the 104th Congress, the House
adopted a new rule to prohibit the introduction and
consideration of date-specific commemorative legislation.\45\
This rule has reduced the number of resolutions introduced and
considered by the House to honor individuals, groups, and
events. As a result, the number of bills and resolutions
introduced to recognize commemorations has decreased and the
number of such bills considered on the House floor has been
reduced to almost zero. This could be another factor in the
decline of measures introduced and public laws enacted.
---------------------------------------------------------------------------
\45\ House Rule XII, clause 5. For more information, see CRS Report
R43539, Commemorations in Congress: Options for Honoring Individuals,
Groups, and Events, coordinated by Jacob R. Straus.
---------------------------------------------------------------------------
In sum, examining the number of bills and resolutions
introduced can be a useful tool for understanding individual
Member engagement in the legislative process and the potential
congressional workload. The greater the number of bills
introduced in a given Congress, the greater the potential
workload for that Congress and, potentially, the greater the
set of ideas to draw on. While a particular Congress would not
be able to address every bill introduced, and many of these
bills are substantively similar, the House or Senate cannot
take up a measure without it first being introduced, even if
the committee process is eliminated or truncated. Bill and
resolution introduction, therefore, may be a proxy for
engagement in the legislative process.
Public Laws
Laws passed by Congress are an attractive measure of
productivity because they are the basis of policy creation, a
potentially basic concept by which to judge a specific
Congress. Public laws also could serve as a proxy for political
agreement or disagreement. When more public laws are enacted,
political actors (i.e., the House, Senate, and the President)
agree on policy changes. When fewer public laws are signed by
the President, at least one actor disagrees with the others.
A public law is created when both the House of
Representatives and the Senate pass identical legislation in
the same legislative vehicle and it is signed by the
President.\46\ Measuring the number of public laws in each
Congress is an easy task as all public laws are published--in
the order they were enacted--in the United States Statutes at
Large. For example, Public Law (P.L.) 110-181, the ``National
Defense Authorization Act for Fiscal Year 2008,'' was the 181st
law signed by President George W. Bush as passed by the 110th
Congress.
---------------------------------------------------------------------------
\46\ Walter J. Oleszek, Congressional Procedures and the Policy
Process, 9th ed. (Washington, DC: CQ Press, 2014), pp. 25-26.
---------------------------------------------------------------------------
Using the Statutes at Large, which have been published
through 2008, supplemented by the Legislative Information
System at the Library of Congress, a list of total public laws
per Congress was produced. Figure 2 shows the number of public
laws enacted between the 80th Congress and the 112th Congress.
During this time period, the average number of public laws
enacted each Congress was 622. The 84th Congress (1955-1957)
had the most enacted laws (1,028), while the 112th Congress had
the fewest (283).
Figure 2. Public Laws Enacted, 80th to 112th Congress
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: United States Statutes at Large and the Legislative
Information System (http:// congress.gov).
If public laws are used to compare Congresses, the 84th
Congress would be the most productive, while the 112th Congress
the least. While this might be true, just examining public laws
does not provide a complete picture of the internal workings of
Congress during this time period or the political climate in
Washington, DC. For example, during the 84th Congress,
President Dwight D. Eisenhower was in the last 2 years of his
first term, and the Democrats controlled both the House and
Senate. Comparatively, the 112th Congress represented the last
2 years of President Barack Obama's first term, and the
Republicans controlled the House and the Democrats controlled
the Senate.
While it is possible that the 84th Congress was the most
productive and the 112th Congress the least, many Congresses
present interesting anomalies. For example, the 97th Congress
(1981-1983) marked the beginning of President Reagan's first
term in office; Republican control of the Senate; and the
enactment of tax reform measures, spending cuts, industry
deregulation, and additional defense spending.\47\ Even with
these enacted measures, the 97th Congress is ranked as the
seventh least productive in Figure 2. Conversely, during the
106th Congress (1999-2001), the greatest number of public laws
was enacted in the last 10 Congresses, but few of its measures
were major endeavors. Instead, the focus of the 106th Congress
was President Clinton's impeachment trial in the Senate and an
overhaul of financial services laws.\48\ That the passage of
major legislation does not match the total number of public
laws enacted will be addressed further in the ``Landmark
Legislation'' section below.
---------------------------------------------------------------------------
\47\ U.S. Congress, House, Office of the Historian, ``97th Congress
(1981-1983),'' Congress Profiles, at http://history.house.gov/
Congressional-Overview/Profiles/97th/.
\48\ U.S. Congress, House, Office of the Historian, ``106th
Congress (1999-2001),'' Congress Profiles, at http://history.house.gov/
Congressional-Overview/Profiles/106th/.
---------------------------------------------------------------------------
Aside from the identification of which Congress produced
the most or fewest public laws, Figure 2 shows a longer term
decline in public laws enacted over the last 60 years. Several
factors could have caused the overall decline in the number of
public laws enacted. These include rules changes, the
filibuster, Senate advice and consent, divided government,
political polarization, omnibus legislation, and policy riders
in appropriations legislation.
Since the 80th Congress, many aspects of congressional
operations, administration, and procedures have changed. These
changes were spurred in 1970 by the enactment of the
Legislative Reorganization Act.\49\ The Legislative
Reorganization Act ``made House and Senate processes more
transparent by making all committee hearings (excluding
national security meetings and appropriations) public, as well
as by permitting televised broadcasts of many of these
committee hearings.'' \50\ These rules changes provided for new
ways to consider legislation on the floor and provided new
technology to record votes in the House.\51\
---------------------------------------------------------------------------
\49\ P.L. 91-510; 84 Stat. 1140 (October 26, 1970).
\50\ U.S. Congress, House, Office of the Historian, ``The
Legislative Reorganization Act of 1970,'' Historical Highlights, at
http://history.house.gov/Historical-Highlights/1951-2000/The-
Legislative-Reorganization-Act-of-1970.
\51\ For example, the adoption of electronic voting and rules
changes in the House eventually sped up the voting process of 30 to 45
minutes per roll call to 15 minutes or less. As a result of the time
savings, the House had the ability to record Members votes more often
and potentially consider more bills than was possible before. For more
information, see Jacob R. Straus, ``Let's Vote: The Rise and Impact of
Roll Call Votes in the Age of Electronic Voting,'' in Party and
Procedure in the United States Congress, pp. 101-123; and CRS Report
R41862, Electronic Voting System in the House of Representatives:
History and Usage, by Jacob R. Straus.
---------------------------------------------------------------------------
In response to the Legislative Reorganization Act, later
changes, and exogenous developments, the House and Senate have
altered the way legislation is considered. In the House, the
use of structured special rules has increased.\52\ The use of
special rules to control the length of debate and the number of
amendments in order has provided the House majority party with
the ability to more tightly control the legislative agenda.\53\
The number of special rules has also decreased, resulting in
fewer measures considered by the House and therefore eligible
for potential presentation to the President for his signature.
Additionally, the scheduling of legislation under suspension of
the rules--a procedure for noncontroversial measures that
requires a two-thirds vote of the House for passage and does
not allow floor amendments--has increased.\54\
---------------------------------------------------------------------------
\52\ Barbara Sinclair, ``House Special Rules and the Institutional
Design Controversy,'' Legislative Studies Quarterly, vol. 19, no. 4
(November 1994), pp. 477-494; and Douglas Dion and John D. Huber,
``Procedural Choice and the House Committee on Rules,'' Journal of
Politics, vol. 58, no. 1 (February 1996), pp. 25-53.
\53\ Joshua Huder and Marian Currinder, ``The Hastert Rule Is
Severely Limiting Speaker John Boehner's Ability to Negotiate a
Compromise over the Shutdown,'' London School of Economics American
Politics and Policy Blog (October 4, 2013), at http://blogs.lse.ac.uk/
usappblog/2013/10/04/hastert-rule/.
\54\ For example, see CRS Report R40829, How Legislation Is Brought
to the House Floor: A Snapshot of Recent Parliamentary Practice in the
111th Congress (2009-2010), by Christopher M. Davis; and CRS Report
R43039, How Legislation Is Brought to the House Floor: A Snapshot of
Parliamentary Practice in the 112th Congress (2011-2012), by
Christopher M. Davis.
---------------------------------------------------------------------------
In the Senate, threats of the filibuster and an increased
use of cloture votes may have contributed to the decrease in
the number of public laws enacted. In recent years, the
majority leader has increasingly turned to the cloture rule--
the process whereby Senators can end a filibuster, or threat of
a filibuster, on legislation with a three-fifths (60 vote)
majority.\55\ Since this threshold can sometimes be difficult
to obtain, and once invoked a maximum of 30 hours of debate
begins, the Senate majority leader will often choose carefully
which bills to bring to the floor. Consequently, the number of
bills for which the majority leader wishes to try to achieve a
60 vote threshold and overcome the threat of a filibuster can
dictate the potential number of bills that receive floor
consideration and have the possibly of becoming law.
---------------------------------------------------------------------------
\55\ For more information on cloture and the filibuster, see CRS
Report RL30360, Filibusters and Cloture in the Senate, by Richard S.
Beth and Valerie Heitshusen.
---------------------------------------------------------------------------
Further, counts of measures introduced, public laws
enacted, and landmark legislation do not take into
consideration one of the major constitutional duties of the
Senate--confirming Presidential executive and judicial branch
nominees.\56\ The Senate spends a significant amount of time
considering executive branch and judicial nominees, with each
nominee potentially requiring floor time for a recorded vote.
For example, in the second session of the 112th Congress, the
Senate received 23,803 nominations and carried over 667
nominations from the first session. Of these 24,470 nominations
pending, 24,296 (99 percent) were confirmed by the Senate.\57\
While the Senate does not provide the number of nominees
debated and voted on the Senate floor, it must still process
tens of thousands of nominations and decide whether a unanimous
consent agreement can be reached or if a vote is necessary. The
latter process can detract from floor time available for the
consideration of legislation.
---------------------------------------------------------------------------
\56\ U.S. Constitution, Article II, section 2, clause 2.
\57\ ``Resume of Congressional Activities, Second Session of the
One Hundred Twelfth Congress,'' Congressional Record, daily digest,
vol. 158, daily edition (January 3, 2013), p. D11.
---------------------------------------------------------------------------
Divided government--where one political party controls the
White House and the other political party controls at least one
Chamber of Congress--is a well-studied phenomenon.\58\ The
impact of divided government on the policy process, however, is
undecided, with some believing it has a negative impact on
governance \59\ and others believing that it can help promote
compromise.\60\ Examining the impact of divided government on
public laws shows no discernible trend in its impact on the
enactment of laws. For example, numerous laws were enacted in
the 84th-86th Congresses (1955-1961) when the Democrats were
the majority party in the House and Senate and President
Eisenhower, a Republican, was in the White House. Similarly,
President Reagan never enjoyed a Republican majority in both
the House and Senate, but still saw more than 600 public laws
enacted in each of the last three Congresses of his
administration (98th-100th Congresses; 1983-1989). An
examination of the data in Figure 2 suggests that divided
government is likely not a factor in the reduced number of
public laws enacted over time.
---------------------------------------------------------------------------
\58\ David R. Mayhew, Divided We Govern: Party Control, Lawmaking,
and Investigations 1946-1990; Morris P. Fiorina, Divided Government, 2d
ed. (New York: Longman Press, 2002); Gary W. Cox and Samuel Kernell,
The Politics of Divided Government (Boulder, CO: Westview Press, 1991);
and Jon R. Bond and Richard Fleisher, The President in the Legislative
Arena (Chicago: University of Chicago Press, 1990).
\59\ David Epstein and Sharyn O'Halloran, ``Divided Government and
the Design of Administrative Procedures: A Formal Model and Empirical
Test,'' Journal of Politics, vol. 58, no. 2 (May 1996), pp. 373-397;
and Susanne Lohmann and Sharyn O'Halloran, ``Divided Government and
U.S. Trade Policy: Theory and Evidence,'' International Organization,
vol. 48, no. 4 (autumn 1994), pp. 595-632.
\60\ Cynthia J. Bowling and Margaret R. Ferguson, ``Divided
Government, Interest Representation, and Policy Differences: Competing
Explanations of Gridlock in the Fifty States,'' Journal of Politics,
vol. 63, no. 1 (February 2001), pp. 182-206.
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Political polarization--the ideological ``distance''
between median members of both parties in Congress--is another
possible reason for the variation in the number of public laws
enacted.\61\ Congress today is more ideologically polarized
than it was in the 1950s, and the number of public laws has
decreased. An increase in polarization could lead to less
agreement on the substance of legislation and fewer bills being
presented to the President for his signature. Political
polarization, however, has always existed at some level.
Whether or not the difference between Republicans and Democrats
in the 112th Congress is greater or less than in previous
Congresses, the decreased number of public laws enacted since
the 80th Congress has presented fewer opportunities for the two
parties to agree on legislation to present to the President
and, therefore, possibly be signed into law.
---------------------------------------------------------------------------
\61\ ``An Update on Political Polarization through the 112th
Congress,'' voteview blog, January 16, 2013, at http://voteview.com/
blog/?p=726. Also, see Sarah A. Binder, Stalemate: Causes and
Consequences of Legislative Gridlock (Washington, DC: The Brookings
Institution Press, 2003).
---------------------------------------------------------------------------
``Omnibus'' legislation--``a measure that combines the
provision of several disparate subjects into a single and often
lengthy bill'' \62\ --is yet another possible explanation for
the decrease in the number of public laws. Using the number of
public laws counts each law equally, regardless of the number
of bills that might have been combined to create the measure.
Because omnibus legislation contains multiple bills in one
legislative vehicle, it is only counted once, when it might
have been counted as more than one if each measure had been
enacted individually. For example, P.L. 111-11, the Omnibus
Public Land Management Act of 2009,\63\ contained 160
individual legislative proposals,\64\ which ``protect more than
1,000 miles of river through the National Wild and Scenic River
System, and designate thousands of miles of trails for the
National Park System.'' \65\ Instead of counting each of the
160 measures individually, they are instead counted as a single
public law. Omnibus measures can be a powerful compromise tool
which often requires Members of Congress to vote for measures
that they might oppose individually.\66\ Because omnibus
measures are only counted once, when they are enacted, they can
lower the total number of bills enacted and make a particular
Congress appear less productive.
---------------------------------------------------------------------------
\62\ Walter Kravitz, American Congressional Dictionary, p. 162.
\63\ P.L. 111-11; 123 Stat. 991 (March 30, 2009).
\64\ ``Obama Signs Sweeping Public Land Reform Legislation,''
CNN.com, March 30, 2009, at http://www.cnn.com/2009/POLITICS/03/30/
obama.lands.bill/.
\65\ U.S. President (Obama), ``Statement on Signing the Omnibus
Public Land Management Act of 2009,'' Public Papers of the Presidents
of the United States: Barack Obama, 2009, Book 1--January 20 to June
30, 2009 (Washington: GPO, 2010), pp. 379-380.
\66\ Glen S. Krutz, Hitching a Ride: Omnibus Legislating in the
U.S. Congress (Columbus, OH: The Ohio State University Press, 2001),
pp. 78 and 126.
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In recent years, Congress has more frequently used policy
riders or limitation amendments--``provisions that negatively
restrict the amount, purpose, or availability of appropriations
funds without changing existing law'' \67\--to constrain or
restrict executive action. The use of these riders allows
Congress to clearly indicate its intent on how money should or
should not be spent and can ``hide'' otherwise policy-related
legislation within appropriations bills. Similar to the
potential miscounting of policy initiatives with omnibus
legislation, a straight count of public laws will not consider
policy riders or limitation amendments that could alter
administrative programs by their inclusion in appropriations
legislation. Further, the subject of the riders is not
necessarily limited in scope. For example, ``Congress has used
appropriations riders to deprive former slaves of the right to
vote, to protect farm subsidies from executive scrutiny, to
prevent the President from making recess appointments, to enter
into the conduct of negotiations with foreign powers, and to
remove suspected Communists from the federal payroll.'' \68\
---------------------------------------------------------------------------
\67\ Jessica Tollestrup, ``The Appropriations Process and
Limitation Amendments: A Case Study on Party Politics and the House
Floor,'' in Party and Procedure in the United States Congress, ed.
Jacob R. Straus (Lanham, MD: Rowman & Littlefield, 2012), p. 61.
\68\ Jacques B. LeBoeuf, ``Limitations on the Use of Appropriations
Riders by Congress to Effectuate Substantive Policy Changes,'' Hasting
Constitutional Law Quarterly, vol. 19, no. 2 (winter 1992), pp. 460-
461.
---------------------------------------------------------------------------
In sum, numerous factors could contribute to the decline in
public laws. When evaluating congressional productivity based
on this metric, consideration of rules changes, the filibuster,
Senate advice and consent, divided government, political
polarization, omnibus legislation, and policy riders are
important for context. By considering these factors, it is
possible to understand that Congress does not operate in a
vacuum and that multiple factors can influence whether a bill
becomes law. For example, fewer public laws might be enacted
because of increased partisanship or divided government. On the
other hand, the rise in the use of omnibus legislation and
policy riders--especially for measures that might have been
enacted as stand-alone laws in past decades--has also
contributed to the decline in public laws. Taken alone, none of
these factors adequately describes a decline in productivity,
but considered together more rigorous conclusions might be
drawn.
Landmark Legislation
At the conclusion of the 111th Congress, The Washington
Post reported that Congress had just completed one of its most
productive 2-year periods in decades and was ``[a] Congress
that . . . passed more landmark legislation than any since the
era of Lyndon B. Johnson's `Great Society.' '' \69\ By using
landmark legislation as a comparative tool, The Washington Post
adopted a strategy previously used by political scientists and
historians in an effort to understand the enactment of major
legislation over time. Landmark legislation also reflects
Madison's concept of great objects or matters expressed in
Federalist 63. Landmark laws are the difficult objects that can
take multiple Congresses to enact.
---------------------------------------------------------------------------
\69\ David A. Fahrenthold, Philip Rucker, and Felicia Sonmez,
``Stormy 111th Congress Was Still the Most Productive in Decades.''
---------------------------------------------------------------------------
Major pieces of legislation have been passed in almost all
periods of American history. Perhaps the seminal effort to
analyze these measures was undertaken by David Mayhew in
Divided We Govern.\70\ Using New York Times and Washington Post
articles to provide contemporary analysis of laws and the
``long-term perspectives of policy specialists about what
enactments have counted most in their area,'' Mayhew developed
a list of 186 landmark laws passed by Congress between the 92d
Congress and, in his work's second edition, the 107th
Congress.\71\
---------------------------------------------------------------------------
\70\ David R. Mayhew, Divided We Govern: Party Control, Lawmaking,
and Investigations 1946-1990, p. 44. Also, see David R. Mayhew, ``The
Least Productive Congress in History?,'' Politico.com, December 23,
2013, at http://www.politico.com/magazine/story/2013/12/least-
productive-congress-in-history-101476.html#.U7r01ig1NlE.
\71\ David R. Mayhew, Divided We Govern: Party Control, Lawmaking,
and Investigations, 1946-2002, 2d ed. (New Haven, CT: Yale University
Press, 2005).
---------------------------------------------------------------------------
Mayhew's 1991 landmark study has been the basis of many
other examinations of how often important laws were enacted.
One of the potential challenges for using Mayhew's analysis to
determine productivity is identifying important legislation.
For example, in 2000, a study determined that divided
government (i.e., the President and at least one Chamber of
Congress are from different political parties) ``depress(es)
the production of landmark legislation by about 30 percent, at
least when productivity is measured on the basis of
contemporaneous perceptions of important legislation.'' \72\
This last point is important. Most measures of productivity, no
matter how robust the analysis, are dependent on determining
what is important at the time of passage, not several years or
decades in the future. Using Mayhew's methodology, the 106th
Congress had the fewest landmark laws with 6 and the 93d
Congress (1973-1975) had the most with 22.
---------------------------------------------------------------------------
\72\ William Howell, Scott Adler, Charles Cameron, and Charles
Riemann, ``Divided Government and the Legislative Productivity of
Congress, 1945-1994.'' Legislative Studies Quarterly, vol. 25, no. 2
(May 2000), p. 302.
---------------------------------------------------------------------------
Former CRS specialist Stephen Stathis also compiled a list
of all major legislation enacted between the 1st and 107th
Congresses.\73\ Stathis compiled his list by searching for
legislation that had ``withstood the test of history or so
dramatically altered the perception of the role of government
that they may be considered of enduring importance.'' \74\
Overall, Stathis identified 327 landmark bills. Using Stathis'
methodology, the 106th Congress had the fewest landmark laws
with 12 and the 95th Congress had the most with 26.
---------------------------------------------------------------------------
\73\ Stephen W. Stathis, Landmark Legislation, 1774-2002
(Washington, DC: CQ Press, 2003).
\74\ To compile his list of landmark legislation, Stathis states
that he examined the U.S. Congressional Serial Set, the Annals of
Congress, Register of Debates, Congressional Globe, Congressional
Record, committee hearing transcripts, committee prints, and a ``broad
range of biographies and specialized works on American history and
politics . . . .'' Stephen W. Stathis, Landmark Legislation, 1774-2002,
pp. v-vi.
---------------------------------------------------------------------------
In contrast to Mayhew and Stathis, Lawrence Dodd and Scot
Schraufnagel drew on seven histories of Congress, the
Presidency, or the United States and six encyclopedias to
create a list of landmark legislation.\75\ To qualify as a
landmark, a law must have been mentioned in ``four or more
sources, at least one of which was in a Congress-specific
publication.'' \76\ Using Dodd and Schraufnagel's analysis, the
98th Congress (1983-1985) and the 102d Congress (1991-1993)
were tied with the fewest landmark laws (2 each) and the 93d
Congress had the most with 11. Figure 3 lists the number of
landmark laws per Congress identified by Mayhew, Stathis, and
Dodd and Schraufnagel.
---------------------------------------------------------------------------
\75\ Lawrence C. Dodd and Scot Schraufnagel, ``Congress and the
Policy Paradox: Party Polarization, Member Incivility, and Enactment of
Landmark Legislation,'' Congress & The Presidency, vol. 39, no. 1
(2012), pp. 109-132.
\76\ Ibid., p. 117.
---------------------------------------------------------------------------
Figure 3. Landmark Legislation, 80th to 107th Congress
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: David R. Mayhew, Divided We Govern: Party Control,
Lawmaking, and Investigations 1946-1990 (New Haven, CT: Yale University
Press, 1991); David R. Mayhew, Divided We Govern: Party Control,
Lawmaking, and Investigations, 1946-2002, 2d ed. (New Haven, CT: Yale
University Press, 2005); Stephen W. Stathis, Landmark Legislation,
1774-2002 (Washington, DC: CQ Press, 2003); and Lawrence C. Dodd and
Scot Schraufnagel, ``Congress and the Polarity Paradox: Party
Polarization, Member Incivility and Enactment of Landmark Legislation,
1891-1994.'' Congress & the Presidency, vol. 39, no. 1 (2012): 109-132.
Regardless of the methodology employed, evaluating
legislative productivity based on landmark legislation is
potentially problematic. As can be seen from the data, scholars
cannot agree on the number of landmark laws in a given
Congress. This attests to the subjectivity of counting landmark
legislation and makes it an unclear measure of legislative
productivity. While Mayhew and Stathis might agree that the
106th Congress passed the fewest landmark laws, Dodd and
Schraufnagel identify the 98th and 102d as having the fewest.
The same issue appears for identifying the most productive
Congress. Mayhew and Dodd and Schraufnagel agree that the 93d
Congress was the most productive, while Stathis identified the
95th Congress.
Evaluating congressional productivity using landmark
legislation provides an opportunity to understand when major
changes are made to public policy and law. American history is
defined by the passage of many laws. For example, during the
recent economic crisis, some observers suggested that Congress
model a tax reform plan after the Tax Reform Act of 1986,\77\
because ``[Reagan] was the last president to preside over a
significant tax reform, one that . . . lower[ed] tax rates and
close[d] loopholes.'' \78\ Regardless of the politics of 1986,
the fondness with which the Tax Reform Act has been remembered
illustrates the power that landmark legislation can have over
the legislative process and debate.
---------------------------------------------------------------------------
\77\ P.L. 99-514; 100 Stat. 2085 (October 22, 1986).
\78\ Floyd Norris, ``Tax Reform Might Start With a Look Back to
'86,'' TheNewYorkTimes.com, November 22, 2012, at http://
www.nytimes.com/2012/11/23/business/a-starting-point-for-tax- reform-
what-reagan-did.html?pagewanted=all.
---------------------------------------------------------------------------
Just because a Congress has few landmark laws does not
necessarily mean it was not productive. For example, it is
possible that a particular Congress not taking action in a
policy area could constitute a landmark action. For example,
between the mid-1960s and 2013, the Senate ``has never failed
to pass a National Defense Authorization Act (NDAA).'' \79\ If
the Senate chose not to pass the NDAA in the future, Congress
could be seen as maintaining the status quo on defense-related
policy. Regardless of the short-term impact of such a decision,
in the future scholars could look back on that decision and
assert that Congress made a strategic shift by not doing
something.
---------------------------------------------------------------------------
\79\ Colleen Shogan, ``Defense Authorization: The Senate's Last
Best Hope,'' in Party and Procedure in the United States Congress, ed.
Jacob R. Straus (Lanham, MD: Rowman & Littlefield, 2012), p. 195.
---------------------------------------------------------------------------
Understanding the long-term impact of public laws aids the
analysis of whether a law is landmark. Political scientist
Michael O'Neill summarized this point when he said that ``the
true effect of a legislative change may not be known or fully
understood until years after the fact.'' \80\ Subsequently, any
new or reevaluation of a particular Congress may result in laws
being added or dropped depending on the methodology employed.
---------------------------------------------------------------------------
\80\ Michael Edmund O'Neill, ``A Legislative Scorecard for the
United States Senate: Evaluating Legislative Productivity.'' Journal of
Legislation, vol. 36, no. 2 (2010), p. 310.
---------------------------------------------------------------------------
Other Possible Measures of Productivity
Legislation introduced, public laws enacted, and landmark
legislation have been the three primary methods used to measure
congressional productivity. In addition to these three,
however, there are several other possible ways to measure
congressional productivity. These include rollcall votes,
committee meetings and hearings, Congressional Record pages,
days in session, and pages in the U.S. Statutes at Large.
rollcall votes
Rollcall votes are recorded votes--most often by electronic
means in the House and always by calling the roll in the
Senate--that allow individual Members to ``go on the record''
on a particular piece of legislation or question.\81\
Historically, rollcall voting studies have focused on voting by
individual groups of legislators and how gender, specific
policy subjects, the White House, and constituents can
influence Members' votes.\82\ Additionally, many studies focus
on political parties and how often Democrats and Republicans
oppose each other.\83\ There are few rollcall studies that
focus on the institution as a whole.\84\ Using rollcall votes
to measure congressional productivity could illustrate how
often Members decide that a record of the vote is necessary.
The decision to record a vote could be political, or it could
signal the importance of the measure being considered.
---------------------------------------------------------------------------
\81\ Jacob R. Straus, ``Let's Vote: The Rise and Impact of Roll
Call Votes in the Age of Electronic Voting,'' in Party and Procedure in
the United States Congress, pp. 101-123.
\82\ See, for example, Brian Frederick, ``Gender and Patterns of
Roll Call Voting in the U.S. Senate,'' Congress & the Presidency, vol.
37, no. 2 (2010), pp. 103-124; Tao Xie, ``Congressional Roll Call
Voting on China Trade Policy,'' American Politics Research, vol. 34,
no. 6 (November 2006), pp. 732-758; Richard S. Conley and Richard M.
Yon, 2007, ``The `Hidden Hand' and White House Roll-Call Predictions:
Legislative Liaison in the Eisenhower White House, 83d-84th
Congresses,'' Presidential Studies Quarterly, vol. 37, no. 2 (June
2007), pp. 291-312; and Stephen Ansolabehere and Philip Edward Jones,
``Constituents' Response to Congressional Roll-Call Voting,'' American
Journal of Political Science, vol. 54, no. 3 (July 2010), pp. 583-597.
\83\ See, for example, Matthew J. Lebo, Adam J. McGlynn, and
Gregory Koger, ``Strategic Party Government: Party Influence in
Congress, 1789-2000,'' American Journal of Political Science, vol. 51,
no. 3 (July 2007), pp. 464-481; Edward B. Hasecke and Jason D. Mycoff,
``Party Loyalty and Legislative Success: Are Loyal Majority Party
Members More Successful in the U.S. House of Representatives?,''
Political Research Quarterly, vol. 60, no. 4 (December 2007), pp. 607-
617; and David W. Rhode, Parties and Leaders in the Postreform House
(Chicago: University of Chicago Press, 1991), p. 8.
\84\ Jacob R. Straus, ``Let's Vote: The Rise and Impact of Roll
Call Votes in the Age of Electronic Voting,'' in Party and Procedure in
the United States Congress, p. 110.
---------------------------------------------------------------------------
Because the number of rollcall votes taken in a given
Congress is a function of requests for recorded votes by
individual Members of Congress, the number of votes taken in a
particular Congress is not necessarily indicative of how much
work is being conducted or its substance. Examining the number
of rollcall votes helps explain the number of times a recorded
vote was taken, but it does not provide information on the type
of vote. Further, as part of the Legislative Reorganization Act
of 1970,\85\ House rules were amended to allow rollcall votes
on amendments in the Committee of the Whole beginning in 1971.
Allowing rollcall votes on amendments increased the potential
number of rollcall votes per Congress by the number of
amendments considered in the House.
---------------------------------------------------------------------------
\85\ P.L. 91-510; 84 Stat. 1140 (October 26, 1970).
---------------------------------------------------------------------------
Several questions about the nature of the vote are also
relevant if rollcall votes are used as a measure of
productivity. Was the vote procedural (e.g., previous question
or to table) or was it for final passage or to agree to an
amendment? Without context, understanding the importance of a
rollcall vote is not possible. Additionally, multiple pieces of
legislation pass or are defeated in the House or Senate by
voice vote or unanimous consent. In these cases, legislative
action has occurred, but no vote has been taken. Using rollcall
votes alone as a measure of productivity would not capture
those actions.
committee activities
Outside of floor activities, much of Congress' work occurs
in committee. Committee activity can be generally summarized
into two categories: meetings--which include hearings and
legislative markups--and committee publications.\86\ Examining
the productivity of committees could provide another metric for
comparing overall congressional productivity.
---------------------------------------------------------------------------
\86\ Roger H. Davidson, Walter J. Oleszek, Frances E. Lee, and Eric
Schickler, Congress and Its Members, 14th ed. (Washington: CQ Press,
2013), pp. 163-165.
---------------------------------------------------------------------------
Hearings serve many purposes,\87\ including providing
opportunities to gather information,\88\ make policy,\89\ and
conduct oversight of the executive branch.\90\ Examining the
number of hearings in a given Congress could give insight into
the number of issues that the House or Senate examined,
including issues that might not receive floor attention. These
could include oversight of various executive branch functions,
examinations into relevant policy issues, and the consideration
of legislation through hearings and markups. As congressional
rules governing committee meetings have changed, however, the
number of meetings may have also changed. For example, past
practice prohibited committees from meeting concurrently with
House floor activities without a special dispensation from the
House. In the 105th Congress (1997-1999), H. Res. 5 amended the
rules of the House to allow committees to meet without
obtaining special leave.\91\
---------------------------------------------------------------------------
\87\ John Baughman, Common Ground: Committee Politics in the U.S.
House of Representatives (Stanford, CA: Stanford University Press,
2006).
\88\ Daniel Diermeier and Timothy J. Feddersen, ``Information and
Congressional Hearings,'' American Journal of Political Science, vol.
44, no. 1 (2000), pp. 51-65.
\89\ David E. Price, ``Policy Making in Congressional Committees:
The Impact of `Environmental Factors,' '' American Political Science
Review, vol. 72, no. 2 (1978), pp. 548-574; and Kevin M. Leyden,
``Interest Group Resources and Testimony at Congressional Hearings,''
Legislative Studies Quarterly, vol. 20, no. 3 (August 1995), pp. 431-
439.
\90\ Mathew D. McCubbins and Thomas Schwartz, ``Congressional
Oversight Overlooked: Police Patrols versus Fire Alarms,'' American
Journal of Political Science, vol. 28, no. 1 (February 1984), pp. 165-
179; and Michael J. Scicchitano, ``Congressional Oversight: The Case of
the Clean Air Act,'' Legislative Studies Quarterly, vol. 11, no. 3
(1986), pp. 393-407.
\91\ CRS Report RL33610, A Retrospective of House Rules Changes
Since the 104th Congress through the 109th Congress, by Michael L.
Koempel and Judy Schneider.
---------------------------------------------------------------------------
An alternative measure of committee activity is to examine
the number of committee publications in each Congress or the
number of pages published in committee reports, prints, and
documents. Reports are ``a committee document that accompanies
a reported measure. It describes the measure, the committee's
views on it, its costs, and the changes it proposed to make in
existing law.'' \92\ Committee prints are documents ``printed
either for the use of a committee or for other informational
purposes.'' \93\ Committee documents are miscellaneous items
that are not necessarily committee reports or committee prints.
---------------------------------------------------------------------------
\92\ Walter Kravitz, American Congressional Dictionary, p. 212.
\93\ Walter Kravitz, American Congressional Dictionary, p. 51. For
example, committee rules are generally published as a committee print.
---------------------------------------------------------------------------
An examination of the number of committee publications or
the number of pages contained in those publications could
provide a metric for congressional productivity across both
legislative and nonlegislative activities. Changes in the
administrative rules of Congress, especially in the House,
however, could make such an analysis difficult. For example,
beginning in the 92d Congress (1971-1973), House rules were
amended to require that all House committees submit a biennial
report of its activities to the House.\94\ That provision was
further amended in the 112th Congress to require semi-annual
reports,\95\ and amended further in the 113th Congress to
require annual reports.\96\ Because of these changes,
committees are to submit more activity reports to the House and
the number of total reports may have increased. Even with an
increase in the number of reports, however, the actual
legislative and oversight work of the committees may or may not
have increased. It should also be noted that there has been a
decline in recent years in the number of some types of
committee publications with committees using electronic formats
as committee records in some instances.
---------------------------------------------------------------------------
\94\ P.L. 91-510, 118(b); 84 Stat. 1140 (October 26, 1970).
\95\ H. Res. 5 (112th Congress), agreed to January 5, 2011. ``Rules
of the House,'' Congressional Record, daily edition, vol. 157 (January
5, 2011), p. H8.
\96\ H. Res. 5 (113th Congress), agreed to January 3, 2013. ``Rules
of the House,'' Congressional Record, daily edition, vol. 159 (January
3, 2013), p. H6.
---------------------------------------------------------------------------
congressional record pages
To assess the productivity of the House or Senate in its
entirety, one possible measure is to examine the number of
pages printed in the Congressional Record. Since the
Congressional Record is a ``. . . substantially verbatim
account of daily proceedings on the Senate [or House] floor,''
\97\ the number of pages printed in the Record might provide a
good approximation of the depth of debate in the House or
Senate. The greater the number of pages that are devoted to
debate on legislative matters, the more importance might be
placed upon those subjects and the House or Senate's
consideration.
---------------------------------------------------------------------------
\97\ U.S. Congress, Senate, Secretary of the Senate,
``Congressional Record,'' Senate Glossary, at http://www.senate.gov/
reference/glossary_term/congressional_record.htm.
---------------------------------------------------------------------------
The Congressional Record, however, is not just a record of
debate. As political scientist Howard Mantel described it in
the 1950s, it also:
summarizes activities of Congressional committees; it is
replete with editorial opinion gleaned from the great and the
not-so-great newspapers of America; and it is dotted with such
sundry items as poetry, both professional and homespun, high
school essays on ``what democracy means to me,'' the results of
a particular congressman's public opinion polls, letters-to-
the-editor and other miscellany, ad infinitum. The
Congressional Record serves also as a local tabloid of events
on Capitol Hill, recording, for example, the menu and agenda
for the serving of the Second Senate Salad, an epicurean
concoction combining the finest in back home specialties, to be
offered in ``the world's largest salad bowl . . . 3 feet wide
and 14 inches deep.'' \98\
---------------------------------------------------------------------------
\98\ Howard N. Mantel, ``The Congressional Record: Fact or Fiction
of the Legislative Process,'' Western Political Quarterly, vol. 12, no.
4 (December 1959), p. 981.
Since many nonlegislative items are added to the Record on
any given day, a straight count of the number of pages per
Congress would not necessarily reflect on that Congress'
productivity. Instead, a separate count, removing the
miscellaneous material, would likely be necessary to get a true
sense of the time spent on debate in the Chambers. Removing the
potentially extraneous materials, however, would potentially
edit out the context of the day and could, in the Senate,
remove material that was provided on the floor during the
pursuit of a filibuster. That material could be an important
part of the debating tactics afforded individual Senators.
days in session
Similar to counting the number of pages in the
Congressional Record, another potential measure of
congressional productivity is the number of days spent in
session. The number of days spent in session has long been used
as a measure of legislative professionalism in the States, with
more days in session indicative of a professional legislature
and fewer of an impermanent institution.\99\ How the House and
Senate choose to allocate their floor time could be a proxy for
the amount of time spent on conducting their business.
---------------------------------------------------------------------------
\99\ For example, see Peverill Squire, ``Measuring State
Legislative Professionalism: The Squire Index Revisited,'' State
Politics & Policy Quarterly, vol. 7, no. 2 (June 2007), pp. 211-227.
---------------------------------------------------------------------------
Pursuant to Article I, section 5, clause 4 of the
Constitution, neither Chamber may take a break of more than 3
days without the consent of the other.\100\ Consequently, in
the absence of a concurrent resolution authorizing the recess
of both the House and Senate, both Chambers will hold periodic
pro forma sessions--a ``brief meeting of the Senate [or House],
. . . sometimes only a few minutes in duration'' \101\ --to
ensure compliance with the Constitution. In recent years, in an
effort to prevent the President from making recess
appointments,\102\ agreement on a concurrent resolution
granting a recess has been rare, and the use of pro forma
sessions has increased. Each pro forma session counts as a full
legislative day. Thus, counting the number of days in session,
when many pro forma sessions are held, could lead to an
increase in the number of days in session, without a
corresponding increase in the consideration of legislation.
---------------------------------------------------------------------------
\100\ U.S. Constitution, Article I, section 5, clause 4.
\101\ U.S. Senate, Secretary of the Senate, ``Pro forma session,''
Senate Glossary, at http://www. senate.gov/reference/glossary_term/
pro_forma_session.htm.
\102\ For more information, see CRS Report RS21308, Recess
Appointments: Frequently Asked Questions, by Henry B. Hogue.
---------------------------------------------------------------------------
Concluding Analysis
Measuring congressional productivity is much more complex
than generally recognized and invariably fraught with
interpretive challenges. As this discussion of individual
measures has shown, each has advantages and disadvantages that
make using them individually potentially problematic. While
legislation introduced, public laws enacted, and landmark
legislation all provide one piece of the overall picture of
congressional productivity, none by itself may suffice to
evaluate a particular Congress.
Regardless of whether one Congress should be judged against
another, it is an activity in which many continue to engage.
Overall, the measures examined in this report could be
interpreted by some to reveal that contemporary Congresses
appear to be less productive than historical Congresses. If it
is true that contemporary Congresses are less productive, what
factors might have caused this evolution?
In the Introduction, three possible explanations were
offered on why assessing congressional productivity might be
important. They were Senator Coburn's idea of public perception
as expressed in his Wastebook, President Truman's concept of
political agreement in labeling the 80th Congress the ``do-
nothing'' Congress, and James Madison's dichotomy of ``easy''
and ``great'' objects of legislation written about in
Federalist 63.
As discussed above, each of the three explanations most
clearly represents one of the three measures discussed in this
report: legislative introduction, public laws, and landmark
legislation. While each concept has been more clearly tied to a
particular measure, each also has elements of the other
measures present in its view of Congress. Further, each change
to the operation or ability of Congress to pass legislation is
important. To best compare congressional productivity, these
measures (and potentially others discussed above under ``Other
Possible Measures of Productivity'') are best used in tandem.
By combining measures of analysis, it might be possible to
incorporate the political (dis)agreement (Truman), public
perception (Coburn), and great objects (Madison) explanations
of congressional productivity to make comparisons across time.
Several advantages could result from using these
explanations together. First, Congress is a dynamic institution
that was designed to change over time. As political scientist
Lawrence Dodd stated: change, whether expected or unexpected,
``can best be understood not as aberrations in our politics but
as the natural, long-term outgrowth of three factors: the goals
and strategies that politicians bring to congressional
politics, the shifting societal contexts that they confront,
and the changing ideas about politics that they experiment with
as they pursue their goals and address societal problems.''
\103\ Because Congress is constantly changing, understanding
that the legislative process in 1948 is not the same as in 2014
is an important finding. Understanding the context of how
Members of Congress come to agreement on measures with each
other and with the President in each of these time periods
bears on impressions of whether Congress is productive.
---------------------------------------------------------------------------
\103\ Lawrence C. Dodd, ``Re-Envisioning Congress: Theoretical
Perspectives on Congressional Change--2004,'' in Congress Reconsidered,
8th ed., ed. Lawrence C. Dodd and Bruce I. Oppenheimer (Washington, DC:
CQ Press, 2005), pp. 411-412.
---------------------------------------------------------------------------
Second, Members of Congress respond to constituent demands,
and as constituent demands change, so do the responses of
Members of Congress. In a June 2014 survey, Gallup reported:
``Seven percent of American say they have `a great deal' or
`quite a lot' of confidence in Congress as an American
institution, down from the previous low of 10% in 2013.'' \104\
When public perception of Congress is juxtaposed against the
decline in bills introduced, public laws enacted, and landmark
legislation, some might conclude that public approval is linked
with these measures. The decline of these measures could be in
response to low approval ratings, with individual Members of
Congress more concerned about their individual reelection than
any specific policy initiative.\105\ Conversely, public
approval of Congress may have declined as the measures of
congressional productivity have also declined. In other words,
the public might be reacting to a perceived lack of
productivity with lower public opinion ratings.
---------------------------------------------------------------------------
\104\ Rebecca Riffkin, ``Public Faith in Congress Falls Again, Hits
Historic Low,'' Gallup.com, June 19, 2014, at http://www.gallup.com/
poll/171710/public-faith-congress-falls-again-hits- historic-low.aspx.
\105\ David Mayhew, Congress: The Electoral Connection.
---------------------------------------------------------------------------
Public perception, however, is not just about polling
numbers. It is also possible that congressional productivity
mirrors public expectations for Congress. In 1982, journalist
Albert Hunt wrote a piece for Washingtonian magazine entitled,
``In Defense of a Messy Congress.'' In this article, he
suggested that Congress should struggle through policy issues
in order to get the policy right. ``The simple fact is that
Congress isn't supposed to operate neatly, efficiently, or
expeditiously. Any system of checks and balances has built-in
tensions and rough edges'' [emphasis in original].\106\
---------------------------------------------------------------------------
\106\ Albert R. Hunt, ``In Defense of a Messy Congress,''
Washingtonian (September 1982), p. 182.
---------------------------------------------------------------------------
If Hunt's analysis is correct, then the American public
might want a Congress that requires significant time to pass
public policy and looks unproductive at times. The public might
want a robust minority that is able to prevent measures from
becoming law without significant cooperation and compromise
between the parties. If, in an effort to appear more productive
and pass more laws, the House and Senate rewrote their rules to
provide for additional majority party control of the
legislative agenda--in a manner more similar to the British
parliamentary system--the majority would have carte blanche to
enact whatever measures it wanted. Precisely because of a
``messy'' system, Congress is deliberate, and major policy
changes can take years, or decades, to be enacted. If more laws
were enacted, Congress might meet citizens' goals for a more
active legislature or it could be imposing majoritarian rule,
one of James Madison's fears espoused in Federalist 10.\107\
---------------------------------------------------------------------------
\107\ James Madison, ``Federalist No. 10: The Same Subject
Continued: The Union as a Safeguard Against Domestic Faction and
Insurrection,'' Federalist Papers, at http://thomas.loc.gov/home/
histdox/fed_10.html.
---------------------------------------------------------------------------
Third, passing major landmark legislation, or ``great
objects,'' is a long and tedious process and can be tied to
public perception. As Senate staffer and political scientist
James Wallner attested: ``Public perceptions of Congress echo
the popular critique that the Senate is beset by gridlock and
thus is dysfunctional.'' \108\ Further, dysfunction by its very
nature prohibits passage or lengthens the amount of time
required to pass landmark legislation. Increasing the amount of
time required to pass landmark legislation, however, could be a
feature of the deliberative process Americans are so often
proud of when describing the government and reflects the desire
for a ``messy'' system.
---------------------------------------------------------------------------
\108\ James I. Wallner, The Death of Deliberation: Partisanship and
Polarization in the United States Senate (Lanham, MD: Lexington Press,
2013), p. 4.
---------------------------------------------------------------------------
Finally, when considering political (dis)agreement, public
perception, and great objects in tandem, one can observe that
policy development and productivity exists within each
Congress. Senator Edward Kennedy knew this to be true and wrote
in his memoir that advancing health care reform would take time
to craft the right policy. It was the length of time, however,
that upon reflection surprised him.\109\
---------------------------------------------------------------------------
\109\ Edward M. Kennedy, True Compass (New York: Twelve Books,
2009), pp. 299-300.
---------------------------------------------------------------------------
Time is a valuable commodity in government. Members of
Congress may measure time not just in days, weeks, or months,
but also in the time between elections. When policy develops
slowly, claiming credit for incremental movement can be
difficult. Instead, it is easier to say that a Congress did or
did not do something within its 2-year window than it is to
view the arc of policy development over time. Balancing
political (dis)agreement, public perception, and great objects
is not an easy proposition. But when understanding the
development of public policy and the role of any given
Congress, considering all three concepts--displayed through the
introduction of legislation, enactment of public laws, and
passing of landmark legislation--Congress may not look quite as
unproductive as popular sentiment holds.
Some measures used to assess congressional productivity and
compare Congresses may fail to account for the complexity
inherent in developing policy in a representative democracy
with separated powers. Judging congressional productivity,
therefore, is inherently rife with judgment calls and is a
value-laden and ideological effort. This is personified in the
opposite views that Representative Hoyer and Speaker Boehner
took in assessing the 112th Congress. Congress might be judged
on how many laws it does pass or how many it repeals, but
ultimately, an assessment of productivity is highly subjective.
=======================================================================
III. THE INSTITUTIONAL CONGRESS
=======================================================================
Recent Innovations in Special Rules in the House of Representatives
Megan S. Lynch
Analyst on Congress and the Legislative Process
and
Mark J. Oleszek
Analyst on Congress and the Legislative Process
----------
In the modern Congress, the Rules Committee is more
than just a gatekeeper providing the means for allowing
the House to consider legislation. The committee acts
as an arm of the House majority leadership through
which they can use the power of the majority to control
myriad aspects of scheduling and consideration. This
chapter covers recent innovations used by the Rules
Committee to solve problems and further the procedural
and political goals of the majority.
Special Rules as Problem-Solvers for the Majority Party
Thousands of legislative proposals are introduced in
Congress each year, many of which are considered at length by
one or more congressional committees. A relative few are
brought to the floor of the U.S. House of Representatives for
consideration by the entire body. The leadership of the House
must therefore make choices regarding what proposals the House
will consider, when it will do so, and what procedural
restrictions will be imposed.
The role of the Rules Committee is to work with the House
leadership to manage the efficient use of time spent by the
House in the consideration of measures on the floor. In doing
this, it is responsible for creating situations that benefit
the majority party, both procedurally and politically, through
the use of special rules.
Originally, the Rules Committee was not a standing
committee but a select committee tasked with drafting the rules
of the House at the beginning of a Congress. By the end of the
19th century, the Rules Committee had become a standing
committee with the task of reporting resolutions providing the
means for considering a measure not otherwise eligible for
floor consideration.\1\ In more recent decades, the Rules
Committee has been more than just a gatekeeper providing the
means for allowing the House to consider legislation. The
committee acts as an arm of the leadership through which they
can use the power of the majority to control myriad aspects of
scheduling and consideration that allows for an efficient use
of floor time.
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\1\ U.S. Congress, House Committee on Rules, A History of the
Committee on Rules, 1st-97th Congress 1789-1981, committee print, 97th
Cong., 2d sess., 1983, 99-451. In Managing Uncertainty in the House of
Representatives: Adaption and Innovation in Special Rules (Washington,
DC: Brookings Institution, 1988), Stanley Bach and Steven Smith provide
an account of the history and development of special rules and the
provisions they contain. See also Stanley Bach, ``From Special Orders
to Special Rules: Pictures of House Procedure in Transition,'' at
http://www.stanistan.org/docs/1/4.pdf.
What is a special rule?
A special rule, often referred to simply as a
``rule,'' is a House resolution reported from
the House Rules Committee. Once adopted by the
House, a special rule has two key functions:
(1) to enable the House to consider the measure
specified, and (2) to set terms for considering
it.
The kinds of provisions contained in special rules have
changed over the years, largely in response to the composition
and needs of House majorities at various points in time.
Special rules have come to regulate a greater share of floor
activity than they once did, including the legislative text
that will be considered on the floor, how long it will be
debated, and to what extent it may be amended. Special rules
may also allow actions that would otherwise not be in order by
providing a waiver of House rules so that Members may not raise
points of order that they could otherwise make.
Special rules may include any number of provisions that
will prevent or resolve problems for a majority party. As
described below, these may relate to managing committee
relations, structuring votes, enhancing transparency, or
attempting to control interactions with the Senate. The
committee has developed such provisions in order to assist
lawmakers in managing an increasingly difficult lawmaking
environment.
The close connection that exists between the House's
majority leadership and the Rules Committee is maintained in
two important ways. First, under party rules, the Speaker and
the minority leader directly nominate their respective party
members to the committee, subject to a vote of approval from
the party caucus or conference. Second, on the Rules Committee,
the majority party enjoys a fixed membership advantage of nine
to four. This deliberate partisan imbalance reflects the vital
role the Rules Committee plays in managing the House's floor
agenda and defining the policy choices that come before the
Chamber.
Special rules have included a number of innovations in
recent years that have affected the work of the House. This
report examines four that illustrate how provisions in special
rules can produce consequences, procedural and political, that
are favorable to the majority party.
Provisions Providing for Consideration of Multiple Measures (Compound
Rules)
Traditionally, provisions of a special rule have governed
the consideration of a single measure or matter on the House
floor. If the Rules Committee wanted to make additional items
privileged for floor consideration, it would usually initiate a
new round of committee deliberations and report a special rule
for each additional measure. While this generally remains the
case today, it has become increasingly common for the committee
to provide for the separate consideration of two or more
distinct measures in a single ``compound'' rule. If adopted, a
compound rule sets the stage for legislative action to occur on
multiple measures in much the same way as would a series of
special rules individually tailored to each measure and adopted
separately. Take, for instance, House Resolution 727, a
compound rule adopted during the 113th Congress (2013-2014). A
portion of that rule appears in Figure 1.
Figure 1. Compound Rule
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: H. Res. 727 (113th Congress).
Section 1 of H. Res. 727 sets forth legislative procedures
for the consideration of H.R. 2, a bill ``to remove federal
government obstacles to the production of more domestic
energy,'' and for other purposes, while section 2 creates floor
procedures to handle H.R. 4, a bill making ``revisions to
federal law to improve the conditions necessary for economic
growth and job creation, and for other purposes.'' When the
House adopted H. Res. 727 by a 227 to 193 vote on September 18,
2014, both measures became eligible for consideration under the
terms of the special rule. The House went on to pass both H.R.
2 and H.R. 4 later that day in accordance with the provisions
of the special rule.
Compound rules are not new to the present Congress. Eight
such rules were granted during the 104th Congress (1995-1996),
but until the 111th Congress (2009-2010), the number of
compound rules per Congress remained fairly steady with no
clear trend evident over time. Since then, however, there has
been a significant increase in their usage, both in terms of
the total number of compound rules per Congress and as a
percentage of all special rules reported during each 2-year
period. This upward trend is shown in Table 1.
Table 1. Compound Special Rules
1995-2013
------------------------------------------------------------------------
Compound
Total Number rules as a
number of percentage
Congress (years) of compound of total
special special special
rules rules rules
------------------------------------------------------------------------
104th (1995-1996)....................... 230 8 3.5
105th (1997-1998)....................... 207 9 4.3
106th (1999-2000)....................... 267 7 2.6
107th (2001-2002)....................... 191 3 1.6
108th (2003-2004)....................... 192 8 4.2
109th (2005-2006)....................... 193 6 3.1
110th (2007-2008)....................... 220 7 3.2
111th (2009-2010)....................... 165 12 7.3
112th (2011-2012)....................... 129 33 25.6
113th Congress, 1st session (2013)...... 54 20 37.0
------------------------------------------------------------------------
Source: Data in Table 1 were drawn primarily from Rules Committee
activity reports. Those reports summarize the work of the committee
during each Congress and are available for download from the
committee's Web site at http://rules.house.gov/resources. Each
compound rule identified in an activity report was cross-checked using
the Legislative Information System of Congress (LIS), an online
database of congressional activity that includes the text of each
resolution the committee reported. Activity reports also list the
total number of special rules the Rules Committee granted during each
2-year period.
Compound rules may offer several advantages to a majority
party and Members generally. For one, compound rules can add
predictability to the House schedule because they identify two
(or more) measures eligible for possible floor consideration
rather than a single measure. Knowing what comes next might
make it easier for Members to prepare for debate and amendment
on the House floor.
Compound rules can also expedite business by reducing the
amount of floor time spent debating special rules. By setting
aside the traditional ``one rule for one bill'' pattern, less
time is spent debating special rules, and more time may be
spent on other business. By combining these measures into a
single special rule, the Rules Committee can reduce the number
of opportunities for a minority party to address underlying
procedural restrictions or the policy embodied in any single
underlying measures. Simply put, there is less debate time on
the floor when compound rules are used. In addition, compound
rules result in fewer opportunities to vote on the previous
question, a vote the minority party often characterizes (during
debate on a rule) as a vote on a particular policy proposal.\2\
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\2\ After an hour of debate on a special rule, a Member from the
majority party typically moves the previous question, a motion that
proposes to end consideration of a matter and move to a final vote. If
the previous question motion were to fail, the minority floor manager
would control an hour of debate time and could offer amendments to the
special rule. While the previous question is almost invariably agreed
to, Members from the minority party will often urge colleagues to vote
``no'' on the previous question so that the special rule could be
altered to allow a different legislative proposal to come to the floor.
During debate on the rule, they may characterize the vote on the
previous question as being a vote on the stated legislative proposal.
The Rules Committee describes such a scenario on page 2 of the
following: http://rules.house.gov/sites/ republicans.rules.house.gov/
files/112-BT-RulesComm-20110706.pdf. For more information on the
previous question, see CRS Report R43424, Considering Legislation on
the House Floor: Common Practices in Brief, by Elizabeth Rybicki.
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Reducing the number of special rules reported may also
provide advantages to the members of the Rules Committee by
reducing the number of meetings or amount of time devoted to
committee hearings and markups. Although service on the Rules
Committee was historically an exclusive assignment for Members
of both parties, preventing them from serving on other House
committees, Members now routinely serve on other committees as
well. These additional assignments may create new pressures,
responsibilities and scheduling demands, so that compound rules
may be seen as a solution to scheduling difficulties because
they allow the committee in a single meeting to set legislative
procedures governing the consideration of multiple measures.
Provisions Providing for the Single Engrossment of Multiple Measures
(Engrossment Rules)
Once a bill or joint resolution has passed the House, an
engrossed copy of the legislation is prepared and certified by
the Clerk of the House before being sent to the Senate.\3\
Occasionally, special rules will include provisions that
instruct the Clerk to perform particular actions during this
process--specifically, to combine the texts of multiple
separately passed bills into a single measure for transmission
to the Senate.\4\
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\3\ For more information on engrossment, see CRS Report 98-826,
Engrossment, Enrollment, and Presentation of Legislation, by R. Eric
Petersen.
\4\ The Rules Committee formally refers to these as rules that
include ``provisions providing for the engrossment of multiple
measures.'' Informally, however, these are often referred to by Members
and staff as ``MIRV'' rules, MIRV being an acronym used in the military
to describe a missile containing multiple independently targetable
reentry vehicles.
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Figure 2 displays language often used to this effect, which
in this case was drawn from section 3 of H. Res. 245, an
engrossment rule adopted during the 112th Congress (2011-2012).
The language of H. Res. 245 directs the Clerk to combine the
texts of two separate bills, H.R. 1229 and H.R. 1230, into a
single measure and make the formatting adjustments necessary to
render a single, seamless, and internally consistent piece of
legislation. The combined product is not subject to an
additional vote by the House. Engrossment rules typically also
contain additional language that permanently and adversely
disposes of those measures combined in this way (like H.R. 1230
in Figure 2) by laying them on the table. This ensures that no
further action will be taken in relation to those tabled
measures.
As shown in Table 2, the use of such provisions has been on
an upward trajectory in recent years.
There are many possible reasons why a special rule that
includes a provision providing for the engrossment of multiple
measures might be used, one of which is clearly contemplated in
the rules of the House. Specifically, Rule XXI, clause
10(b)(2)--referred to as the Cut-as-You-Go, or CutGo, rule--
references such a special rule in providing guidance for its
enforcement. The CutGo rule generally prohibits consideration
of legislation in the House if it would have the net effect of
increasing total direct spending over two specified periods.\5\
The rule, however, also provides that a separately passed
measure to be added during engrossment pursuant to a special
rule can act as an offset to such an increase. In this way, it
is possible to have one measure act as a budgetary offset for
another measure, even though the measures are considered and
passed separately by the House.
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\5\ The periods are (1) the current year, the budget year, and the
4 fiscal years following the budget year; and (2) the current year, the
budget year, and the 9 fiscal years following that budget year.
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Figure 2. Engrossment Rule
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: H. Res. 245 (112th Congress).
For example, in the 112th Congress, the special rule H.
Res. 245 provided that during engrossment of H.R. 1229, a bill
to amend the Outer Continental Shelf Lands Act, the Clerk was
to add the text of H.R. 1230, a bill to require the Secretary
of the Interior to conduct certain offshore oil and gas lease
sales, and for other purposes. The Congressional Budget Office
(CBO) estimated that H.R. 1229 as reported (which was the form
passed by the House) would increase direct spending over one of
the two relevant periods.\6\ CBO estimated, however, that the
other measure, H.R. 1230, would decrease mandatory spending by
a greater amount over the same period.\7\ This meant that, when
combined, the bills were projected to have the net effect of
reducing mandatory spending in the relevant periods and
therefore would not violate the CutGo rule.\8\
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\6\ The period of the current year, the budget year, and 4 fiscal
years following the budget year.
\7\ The CBO cost estimate pertained to the bill as reported, which
was the form as passed by the House.
\8\ As stated in H. Rept. 112-73, the committee report accompanying
H. Res. 245, when referring to the budgetary effects of H.R. 1229,
``This budgetary violation will be cured when, pursuant to the
resolution, H.R. 1230 is added as new matter at the end of H.R. 1229.
In accordance with clause 10(b) of rule XXI, the provisions of H.R.
1230 will offset the breach in allocation of entitlement authority for
a total net reduction in direct spending of $34 million over the 2011-
2021 period.''
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Allowing the House to consider measures separately, both in
committee and on the House floor, may also allow majority
leadership to keep the question of germaneness more narrowly
focused: The broader a measure is at the time of its
consideration, the more likely an amendment can be germane to
its text. This might enable the majority leadership to keep
consideration of alternatives, including motions to recommit
with instructions, restricted to more narrow questions and not
affect the content of the measure as sent to the Senate.
Table 2. Engrossment Special Rules
1995-2013
------------------------------------------------------------------------
Engrossment
Total Number of rules as a
number of engrossment percentage
Congress (years) special special of total
rules rules special
rules
------------------------------------------------------------------------
104th (1995-1996).................. 230 1 0.4
105th (1997-1998).................. 207 2 0.9
106th (1999-2000).................. 267 3 1.1
107th (2001-2002).................. 191 0 0.0
108th (2003-2004).................. 192 4 2.1
109th (2005-2006).................. 193 4 2.1
110th (2007-2008).................. 220 6 2.7
111th (2009-2010).................. 165 9 5.5
112th (2011-2012).................. 129 5 3.9
113th Congress, 1st session (2013). 54 4 7.4
------------------------------------------------------------------------
Source: Data in Table 2 were drawn primarily from Rules Committee
activity reports. Those reports, which summarize the work of the
committee during each 2-year period, identify various provisions in
special rules including those that ``provide for the engrossment of
multiple measures.'' Each engrossment rule listed in an activity
report was cross-checked using the Legislative Information System of
Congress (LIS).
Engrossment rules may also be used to provide enhanced
control over the number of House-passed measures that are
available for Senate action. This is especially pertinent to
revenue measures, because the U.S. Constitution requires those
measures to originate in the House.\9\ The Senate may not
originate revenue bills, but it is free to amend such measures
sent to it by the House. For example, it may be that the House
wants to consider and vote on several revenue issues
separately, both in committee and on the House floor. The
engrossment of multiple measures, then, can be used as a way to
allow this while simultaneously limiting the number of revenue
bills available to the Senate.
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\9\ The ``origination clause'' of the U.S. Constitution is found in
Article 1, section 7, clause 1. For more information on the effect of
this clause on the consideration of revenue measures, see CRS Report
RL31399, The Origination Clause of the U.S. Constitution:
Interpretation and Enforcement, by James V. Saturno.
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By combining measures separately passed in the House,
engrossment rules may also increase the likelihood of Senate
action on a particular issue or expand the scope of matters to
be negotiated in the resolution of bicameral differences. In
this way, engrossment rules can create opportunities for
compromise that might not otherwise exist.
Provisions Referring to Legislative Text Within a Committee Print
(Committee Print Rules)
Whereas the two innovations described above concern the
provisions in the special rule, this innovation concerns the
form in which the Rules Committee prescribes the text for
consideration by the House. In that sense, this innovation is a
new method for performing what has been one of the committee's
traditional tasks: establishing the legislative text for
consideration.
When the Rules Committee crafts a special rule, it has a
variety of ways it can specify the legislative text to be
considered. The rule itself can specify the legislative
language by referring to a specific measure as introduced,
reported by committee, or as modified by other legislative
language that appears elsewhere. Until recently, if this
language was extensive, it would appear in the text of the
committee report accompanying the special rule, providing the
benefit of allowing the House to see the new legislative text
prior to its consideration.
By establishing the legislative text eligible for floor
consideration, the Rules Committee can address any number of
policy or political challenges that require the House majority
leadership, often with the support of relevant committee
chairs, to facilitate their lawmaking goals. For example, the
Rules Committee can make adjustments to committee-reported
language in order to incorporate the recommendations of another
committee that shares jurisdiction over the underlying measure
or otherwise satisfy policy choices favored by the majority.
In the case that the legislative text set forth in the
special rule combines several measures (or portions of
measures) reported by committee, the special rule can provide
several of the same advantages as a compound rule, as described
above. By combining several measures into a single bill, the
Rules Committee can decrease time spent on the floor and reduce
the number of opportunities for the minority party to address
the policy embodied in the underlying measures. For example,
the minority is guaranteed a motion to recommit on each
individual bill considered by the House. If fewer separate
measures are considered on the House floor, the minority party
will have fewer opportunities to get a vote on its policy
preferences.\10\ Also, similar to special rules that include
engrossment provisions, described above, combining measures for
floor consideration can allow measures to be considered
separately in committee, allowing committee leadership to keep
the question of germaneness more narrowly focused yet allow
several bills to be combined postcommittee so that less time is
used for floor consideration.
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\10\ The motion to recommit is typically offered after the previous
question has been ordered on a measure but before the House votes on
final passage. Preference in recognition for offering a motion to
recommit is given to a member of the minority party who is opposed to
the bill. A motion to recommit may have various procedural effects,
including amending an underlying measure, sending it to one or more
committees, providing additional time for its consideration, or
potentially disposing of the legislation. The motion to recommit might
also have political effects. For more information on the motion to
recommit, see CRS Report RL34757, The Motion to Recommit in the House
of Representatives: Effects and Recent Trends, by Megan S. Lynch.
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Recently, however, it has become common for the Rules
Committee to provide the text to be considered in the form of a
Rules Committee print. In many cases, a Rules Committee print
contains language that is identical to a committee-reported
bill. Rules Committee Print 113-48, for instance, mirrors
exactly the text of H.R. 6, which was reported by the Committee
on Energy and Commerce on June 19, 2014. Although the language
of both measures is equivalent, selecting a Rules Committee
print as the basis for debate and amendment offers several
advantages to the majority leadership and Members generally.
First, and perhaps most important, Rules Committee prints made
in order under the terms of a special rule can be easily
located and retrieved in portable document format (PDF) from
the Rules Committee Web site for inspection by all Members, as
well as the general public. Transparency in lawmaking can be
enhanced when the Rules Committee acts as a legislative
clearinghouse in this way. Second, Rules Committee staff can
quickly post the text of a measure online in the form of a
Rules Committee print. This can be especially beneficial to
Members who intend to offer amendments because page and line
numbers in a Rules Committee print are fixed at the outset,
whereas additional time is occasionally needed for the
Government Printing Office (GPO) to publish and distribute new
or revised committee reports. In this way, use of the committee
prints may be related to the pledge articulated by the majority
party that the text of any measure considered on the House
floor will be made available 3 days before consideration.\11\
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\11\ The majority party pledge includes the following language,
``Read the Bill. We will ensure that bills are debated and discussed in
the public square by publishing the text online for at least three days
before coming up for a vote in the House of Representatives. No more
hiding legislative language from the minority party, opponents, and the
public. Legislation should be understood by all interested parties
before it is voted on.'' from page 33 at the following http://
www.gop.gov/resources/library/documents/pledge/a-pledge-to-america.pdf.
Pursuant to this pledge, the legislative text is made available at
http://docs.house.gov/.
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Figure 3. Committee-Print Rule
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: H. Res. 636 (113th Congress).
Figures displayed in Table 3 illustrate the number and
percentage of ``Print Rule''--defined here as special rules
that set a Rules Committee print as the text for floor
consideration--in relation to the total number of special rules
granted by the Rules Committee since the beginning of the 104th
Congress (1995-1996). As indicated in Table 3, such committee
print rules have become increasingly common.
Table 3. Committee Print Special Rules
1995-2013
------------------------------------------------------------------------
Print
Total Number of rules as a
number committee percentage
Congress (years) of print of all
special special special
rules rules rules
------------------------------------------------------------------------
104th (1995-1996)...................... 230 0 0
105th (1997-1998)...................... 207 0 0
106th (1999-2000)...................... 267 1 0
107th (2001-2002)...................... 191 0 0
108th (2003-2004)...................... 192 1 1
109th (2005-2006)...................... 193 3 2
110th (2007-2008)...................... 220 0 0
111th (2009-2010)...................... 165 0 0
112th (2011-2012)...................... 129 27 21
113th Congress, 1st session (2013)..... 54 22 41
------------------------------------------------------------------------
Source: Data displayed in Table 3 were drawn from the Legislative
Information System (LIS) by searching the text of House resolutions
for the phrase ``Rules Committee print'' without word variants.
Figures on the total number of special rules granted during each 2-
year period were drawn from Rules Committee activity reports for that
Congress (or session of Congress).
New Provisions Restricting the Consideration of Amendments on
Appropriations Bills
Another example of innovation in special rules occurred in
the 113th Congress (2013-2014) when the Rules Committee
reported special rules that establish a new way to regulate the
amendment process on appropriations measures. It appears that
this was done to accomplish multiple goals set out by the
majority leadership: to allow an open amending process and to
make more efficient use of floor time.
Customarily, when Members consider a measure for amendment
under the terms of a special rule, it is done in one of two
ways.
First, an ``open'' special rule would allow amendments to
be considered under the ``5-minute'' rule, meaning that any
Member may offer an amendment that is otherwise in order under
the standing rules of the House. The Member offering the
amendment is recognized for 5 minutes to speak in favor, after
which an opponent can be recognized to speak against the
amendment for 5 minutes. In this situation, other Members may
also offer ``pro forma'' amendments, which allow them to secure
an additional 5 minutes to speak on the amendment. Typically,
there is no limit on the number of pro forma amendments that
can be offered. Under an open rule, pending first degree
amendments are also, prior to being voted on, subject to
amendments in the second degree. Eleven of the 12 regular
appropriations bills are traditionally considered under an open
rule when brought to the floor for consideration.\12\
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\12\ The legislative branch appropriations bill is the exception:
It is typically brought to the floor under a ``structured'' special
rule, which specifies what amendments will be in order.
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Alternatively, the Rules Committee can limit the amendments
that are in order by reporting a ``structured'' special rule.
In current practice, when they do this, they typically prohibit
second degree amendments and restrict debate on an amendment to
10 minutes, divided equally between the proponent and an
opponent of the amendment. The proponent and opponent
``control'' the time, meaning that they may reserve the balance
of their time in order to alternate speaking and that other
Members can speak on the amendment only if they have been
yielded time by the proponent or opponent controlling time. No
pro forma amendments are in order.
The recently reported provision of special rules on
appropriations bills embodies a hybrid of these two typical
amending scenarios.\13\ While the rule allows for any Member to
offer an amendment to the bill, it prohibits second degree
amendments and significantly restricts debate on any amendment.
As in a structured rule, such rules provide 10 minutes for
debate equally divided and controlled by the proponent and an
opponent of the amendment, but they prohibit pro forma
amendments, meaning no Member can secure 5 additional minutes
to speak as a matter of right so that any Members wishing to
speak on an amendment must be yielded time from either the
proponent or an opponent. These rules do provide an exception,
however, and grant up to 10 pro forma amendments to each the
chair and ranking minority member of the Appropriations
Committee (or their respective designees) to use while
addressing any amendments during consideration of the
underlying bill.\14\
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\13\ The Rules Committee has described these rules as ``modified-
open'' rules, which presumably adds to the definition of modified-open
rules presently encompassing rules that (1) place an overall time cap
on the consideration of all amendments or (2) require amendments to be
preprinted.
\14\ H. Res. 616 (113th Congress), H. Res. 628 (113th Congress), H.
Res. 641 (113th Congress), H. Res. 661 (113th Congress).
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In a letter to the Rules Committee chairman, the
Appropriations Committee chairman specifically requested such
language in a special rule:
In addition, in order to assure completion of the bill in a
reasonable amount of time, I believe providing additional
measures to help facilitate orderly and expedited debate would
be useful . . . . The benefits of assuring each bill progresses
through the amendment process in a timely manner will be the
opportunities to consider additional appropriations bills on
the floor and to allow members to have their input on those
bills as well. It is my desire to bring all twelve
appropriations bills to the floor, if possible, and I believe
these additional measures will help make that possible.\15\
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\15\ Harold Rogers, chairman of the House Appropriations Committee,
letter to the Honorable Pete Sessions, chairman of the House Rules
Committee, June 9, 2014.
While it is unusual for a special rule to provide for such
an amending scenario, such a situation has sometimes been
agreed to under the terms of a unanimous consent agreement
after a bill has been brought to the floor.\16\ During the
Rules Committee markup, a majority party Member stated, ``While
not our usual process, this procedure balances the need for any
Member to offer any amendment to the bill with the need to
complete our work.'' A Member from the minority party, however,
expressed concern that while such restrictions had previously
occasionally been
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\16\ Representative Frank Wolf, ``Limiting Amendment Debate during
Further Consideration of House Debate on H.R. 4660, Commerce, Justice,
Science and Related Agencies Appropriations Act, 2015,'' House debate,
Congressional Record, daily edition, vol. 160, May 29, 2014, p. H4955.
done by unanimous consent, what you are doing with this
appropriations bill now is you are instituting a 10-minute time
limit on each amendment, five minutes on each side, you are
eliminating pro forma amendments which will also limit debate
severely, and to suggest that we are going to have a serious
discussion on child nutrition standards in schools with five
minutes on each side, I think is absurd. This is an intentional
attempt to limit debate on a very, very important bill.\17\
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\17\ House Rules Committee markup on H. Res. 616 for H.R. 4800,
June 17, 2014, at http://rules.house.gov/video/rules-committee-hearing-
hr-4870-and-senate-amendment-hr-3230.
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Figure 4. Rule with New Provision Restricting the Amendment Process
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: H. Res. 616 (113th Congress).
The Ever-Changing Special Rule
An examination of special rules over the past century
reveals that their contents consistently evolve. The primary
role of the Rules Committee is to create situations that
benefit the majority party, both procedurally and politically,
and to accomplish this, the Rules Committee continually
develops innovative provisions to include in special rules.
Likewise, once a provision ceases to be useful to the majority
for any variety of reasons, the Rules Committee will likely
abandon it.
Sometimes provisions are used only temporarily because they
cease to be useful in achieving the goals of the majority or
represent solutions to things that are no longer viewed as
problems. Sometimes provisions are replaced by a provision that
the majority party prefers instead. For example, beginning in
the 1980s, the Rules Committee sometimes reported special rules
that included a provision allowing the House to consider a
series of several alternative amendments to the same text. The
provision specified that if more than one amendment achieved a
majority vote, it would be the last one adopted that would be
considered as agreed to. These special rules, referred to as
king-of-the-hill rules, became relatively popular until they
were replaced in the mid-1990s by what were referred to as
queen-of-the-hill rules. These rules included a similar
provision that would allow the House to consider several
alternative amendments to the same text, but the amendment to
achieve the greatest number of votes (assuming it was at least
a majority) would be considered as adopted. Queen-of-the-hill
rules were used sparingly and ceased being used at all after
2002.\18\
---------------------------------------------------------------------------
\18\ For a discussion of such rules, see James Saturno, ``Toppling
the King of the Hill: Understanding Innovation in House Practice,'' in
Jacob Straus, Party and Procedure in the United States Congress
(Lanham, MD: Rowman and Littlefield, 2002).
---------------------------------------------------------------------------
While the Rules Committee discontinues the use of any
provisions that it no longer finds useful, it may be that
provisions cease to be included for another reason. If used
routinely enough, provisions included in special rules may
ultimately be folded into the House standing rules so that it
is no longer necessary to include them in a special rule. For
example, during the 104th, 105th, and 106th Congresses (1995-
2000), special rules commonly included a provision providing
the chairman of the Committee of the Whole the authority to
postpone and cluster recorded votes.\19\ In the 107th Congress
(2001-2002), this authority was integrated into the standing
rules of the House as House Rule XVIII, clause 6(g).
---------------------------------------------------------------------------
\19\ For more information, see U.S. Congress, Constitution,
Jefferson's Manual, and Rules of the House of Representatives, H. Doc.
112-161, 984, 112th Cong., 2d sess. (Washington: GPO, 2013).
---------------------------------------------------------------------------
Because new provisions are regularly introduced and phased
out as necessary to facilitate the work of the majority party,
it is important to view any current trends of provisions in
special rules with the understanding that, since their
inception, special rules have continually evolved in substance
and construction and will likely continue to do so.
Changes in the Purposes and Frequency of Authorizations of
Appropriations
Jessica Tollestrup
Analyst on Congress and the Legislative Process
----------
The form and content of authorization laws and their
role in budgetary decisionmaking has varied greatly
over time. In the 19th century, authorizations were
primarily used for the initial establishment of
programs while control over the details of particular
activities and amounts was achieved through the annual
appropriations process. During the mid-20th century,
however, the legislative committees began to include
provisions that explicitly authorized appropriations in
authorization acts as a means of influencing budgetary
outcomes, both with respect to the action of the
appropriators and for the agencies under their
jurisdiction. In addition, these committees began to
establish periodic schedules of review for certain
agencies so that it became necessary to enact
reauthorizations on an annual or multiyear basis. As
these practices have continued to evolve in more recent
years, the congressional reauthorization process has
again shifted to being more policy focused, with less
of an emphasis on funding levels or periodic
reauthorization schedules. This chapter discusses
general themes that underlie this evolution, and
illustrates them with three case studies on the
authorizations of appropriations for the National
Science Foundation, the National Aeronautics and Space
Administration, and the Peace Corps.
Introduction
A basic principle underlying the congressional budget
process is the separation between money and policy decisions.
One means through which this division of labor has been
observed is through congressional rules and practices that
distinguish between provisions that establish the activities of
government and those that fund those activities--
``authorizations'' and ``appropriations,'' respectively.\1\ An
authorization generally provides legal authority for the
government to act, usually by establishing, continuing, or
restricting a Federal agency, program, policy, project, or
activity. It may also, explicitly or implicitly, authorize
subsequent congressional action to provide appropriations for
those purposes. By itself, however, an authorization does not
provide funding for government activities. An appropriation
generally provides both the legal authority to obligate future
payments from the Treasury, and the ability to make subsequent
payments to satisfy those obligations. Since the adoption of a
formal rule in the House in 1835, the distinction between
authorizations and appropriations has been based on limiting
the provisions of appropriations measures to funding those
programs or activities previously established by law. The form
in which those programs or activities are established, however,
is not prescribed by House or Senate rules or practices, so the
language and specificity of such provisions has varied greatly
over time.\2\
---------------------------------------------------------------------------
\1\ The current congressional practices and legal principles
associated with authorizations and appropriations are summarized in CRS
Report R42098, Authorization of Appropriations: Procedural and Legal
Issues, by Jessica Tollestrup and Brian T. Yeh.
\2\ This report's summary of the general development of these
congressional rules and practices is largely based on Alan Schick,
Legislation, Appropriations, and Budgets: The Development of Spending
Decision-making in Congress, Congressional Research Service, May 1984
(hereinafter, Legislation, Appropriations, and Budgets); and Louis
Fisher, ``Annual Authorizations: Durable Roadblocks to Biennial
Budgeting,'' Public Budgeting and Finance, spring 1983 (hereinafter,
``Annual Authorizations'').
---------------------------------------------------------------------------
During the 19th century, authorizations generally were used
for the initial establishment of programs, while control over
the details of particular activities and amounts was achieved
through the annual appropriations process. Authorization laws
were enacted on a permanent basis to provide broad grants of
authority to government departments and agencies. In these
laws, the authorization of subsequent congressional action to
provide appropriations was implied and did not include specific
amounts to be appropriated. That is, the general authorization
in these laws included both the legal authority to act, as well
as the authority under congressional rules to appropriate funds
for such activities. Temporary authorizations were rare and
were generally reserved for programs that were intended to be
of a limited duration. In contrast, annually enacted
appropriations laws contained the details as to what agencies
were able to do and how much they would have to spend.\3\
---------------------------------------------------------------------------
\3\ Legislation, Appropriations, and Budgets, p. 8.
---------------------------------------------------------------------------
Developments in the House and Senate committee systems that
occurred during this same period also served to strengthen this
authorization-appropriations distinction. From the earliest
Congresses the ``legislative committees'' had jurisdiction over
authorization measures while the House Ways and Means Committee
and Senate Finance Committee were responsible for most
appropriations bills. During the Civil War, however, when the
workload of these committees and size of Federal expenditures
increased considerably, both Chambers chose to create separate
appropriations committees that would be responsible for the
annual appropriations measures.\4\
---------------------------------------------------------------------------
\4\ The House Appropriations Committee was established in 1865; the
Senate Appropriations Committee was established in 1867. The events
leading to the establishment of these committees are discussed in
Charles H. Stewart, III, Budget Reform Politics: The Design of the
Appropriations Process in the House of Representatives, 1885-1921 (New
York, NY: Cambridge University Press, 1989), pp. 53-83; and U.S.
Senate, Committee on Appropriations, Committee on Appropriations: 1867-
2008, 110th Cong., 2d Sess., Doc. No. 14 (Washington, DC: GPO, 2008),
pp. 4-6.
---------------------------------------------------------------------------
As the size and scope of Federal Government activities
increased during the 19th and early 20th centuries, the
congressional practices related to authorizations and
appropriations began to change. Authorization laws began to
specify the details of broad classes of Federal Government
programs and activities in consolidated legislation, instead of
in multiple pieces of stand-alone legislation that addressed
only some aspects of such programs and activities. At about the
same time, appropriations, which used to be almost entirely
comprised of specific line items, shifted to more general lump
sums for purposes that were usually identified simply by
referencing the statutory authorization. In other words,
appropriations began to rely on the authorization statutes to
specify and limit how the funds would be used. Although
jurisdiction over some appropriations was dispersed during the
late 19th century, Congress continued to keep appropriations
separate and distinct from authorizations.\5\ The
reconsolidation of appropriations jurisdiction, and the
reorganization of regular annual appropriations bills in the
House in 1920 (and in the Senate in 1922), also reinforced this
distinction.\6\
---------------------------------------------------------------------------
\5\ Stewart, pp. 89-132.
\6\ Background on these changes is provided in U.S. House of
Representatives, Committee on Appropriations, A Concise History of the
House of Representatives Committee on Appropriations, 111th Cong., 2d
Sess. (Washington, DC: GPO, 2010), pp. 7-11; U.S. Senate, Committee on
Appropriations, Committee on Appropriations: 1867-2008, 110th Cong., 2d
Sess., Doc. No 14 (Washington, DC: GPO, 2008), pp. 9-16.
---------------------------------------------------------------------------
The choice to separate money and policy decisions and vest
control over them in different congressional committees has
meant longstanding tensions between the authorization and
appropriations processes. In terms of both what the Federal
Government should do and at what level its activities should be
funded, these tensions have significantly influenced how the
processes have evolved, as each attempts to exercise a greater
role in congressional and agency funding decisions. In the
early 20th century, as a consequence of the changes that were
discussed in the previous paragraph, the legislative committees
began to assert their role in fiscal decisionmaking through two
particular mechanisms. First, the committees began to include
provisions that explicitly authorized appropriations in
authorization acts, such as language that ``hereby authorized
to be appropriated'' for certain purposes. Second, associated
with these provisions, the committees began to conduct reviews
and enact revisions to authorization laws for certain agencies
and departments on periodic schedules, instead of on an as-
needed basis.\7\
---------------------------------------------------------------------------
\7\ Legislation, Appropriations, and Budgets, pp. 28-31, 37-41.
---------------------------------------------------------------------------
This report discusses general principles in how the
language concerning the purposes and frequency of
authorizations of appropriations has changed over the past
century. These general principles are illustrated through case
studies on the authorizations of appropriations that were
enacted during this period for three agencies: the National
Science Foundation, the National Aeronautics and Space
Administration, and the Peace Corps.
Evolution of Authorizations during the 20th Century
Coincident with the enactment of the Budget and Accounting
Act of 1921, jurisdiction over general appropriations increased
the role of the appropriations committees in congressional
decisions about spending. In response, the legislative
committees began to explore new legislative language that would
influence budgetary outcomes, both with respect to the action
of the appropriators, and also in their oversight of the
agencies under their jurisdiction. This resulted in significant
changes in the content and timing of authorization laws over
the next several decades.
Emergence of Explicit Authorizations of Appropriations
The first significant change in the form of authorization
laws occurred after the 1920s, when they began to include
provisions that explicitly ``authorized to be appropriated''
future budgetary resources tied to certain purposes. By one
estimate, this practice grew so rapidly that in 1937, there
were more than 100 measures enacted into law with explicit
authorizations of appropriations for definite amounts.\8\ At a
minimum, such provisions were a recommendation of the
legislative committees as to the level of future
appropriations. This practice, however, had broader
implications for the role of the legislative committees in
budgetary decisionmaking because existing House and Senate
rules that prohibited appropriations not authorized by law had
to be applied in new ways.\9\ Although these prohibitions were
longstanding, having been first adopted during the previous
century, authorization provisions that established an entity,
project, or activity were considered to be sufficient to
implicitly authorize subsequent appropriations under the terms
of these rules.\10\ However, when the legislative committees
started to include explicit provisions authorizing
appropriations, this effectively enabled them to create
procedural ceilings on subsequent appropriations, and thus
exert greater influence over subsequent funding decisions.\11\
---------------------------------------------------------------------------
\8\ Ibid., pp. 28-29.
\9\ These prohibitions are currently located in House Rule
XXI(2)(a) and Senate Rule XVI(1). For further information on the
operation of these rules, see CRS Report R42098, Authorization of
Appropriations: Procedural and Legal Issues, by Jessica Tollestrup and
Brian T. Yeh, pp. 4-8.
\10\ The first formal rules that required a prior authorization by
law for appropriations were adopted by the House in 1837. The Senate
followed suit with the adoption of its first formal rules on the topic
in 1850. Legislation, Appropriations, and Budgets, pp. 7, 9, 11, and
15-17.
\11\ The legislative committees also employed other mechanisms
during this period to influence fiscal decisionmaking, such as so-
called ``backdoor spending,'' which included borrowing authority,
contract authority, mandatory entitlements, and permanent
appropriations. For a further discussion of these and other such
mechanisms, see Louis Fisher, ``The Authorization-Appropriation Process
in Congress: Formal Rules and Informal Practices,'' Catholic University
Law Review, Vol. 29, 1979-1980, pp. 51-105.
---------------------------------------------------------------------------
As language specifically authorizing appropriations was
increasingly used, various practices started to emerge. First,
the legislative committees began to authorize definite amounts
to be appropriated for specific fiscal years. In their early
use, such provisions were typically tied to minor or temporary
programs. Second, because provisions that limited the amount or
duration of future appropriations were considered to be
inappropriate for permanent or large-scale government programs,
provisions authorizing appropriations for ``such sums as are
necessary'' were typically used for such programs. These
provisions were also used to address multiple programs under
the auspices of a single agency.\12\
---------------------------------------------------------------------------
\12\ Ibid, pp. 28-32.
---------------------------------------------------------------------------
Periodic Reauthorization
At the end of World War II, an estimated 5 percent of
programs, excluding one-time projects, had explicit
authorizations of appropriations that applied to specific
fiscal years.\13\ Over the postwar period, however, as the
legislative committees continued to increase their use of such
provisions, they began to apply such provisions to programs of
a larger scale or permanent nature.
---------------------------------------------------------------------------
\13\ U.S. Senate, Committee on Government Operations, Subcommittee
on Budget, Management, and Expenditures, Improving Congressional
Control over the Budget, Committee Print, 93d Cong., 1st Sess.
(Washington, DC: GPO), 1973, p. 262 (hereinafter, Improving
Congressional Control over the Budget).
---------------------------------------------------------------------------
The types of provisions periodically authorizing
appropriations that were developed during this period have
continued to be used through the present day. These provisions
generally indicate two schedules of legislative review:
``annual'' and ``multiyear.'' Annual authorizations of
appropriations explicitly authorize appropriations for a single
fiscal year. Multiyear authorizations of appropriations
explicitly authorize appropriations for more than 1 fiscal year
at a time (typically between 2 and 5).
annual authorizations
As the legislative committees began to experiment with
provisions authorizing appropriations for a single fiscal year,
one motivation was to better oversee and influence agency
spending decisions. Annual authorizations of appropriations
were first applied to newly created agencies or programs, in
part because these annual provisions were believed to encourage
close review and oversight early in an agency's or program's
development.\14\ Later, in response to perceived issues with
existing agencies or the congressional oversight of them,
legislative committees sometimes added annual authorization
provisions to the underlying statute governing these agencies,
thereby converting them to an annual reauthorization
schedule.\15\ For example, annual authorizations were used in
some instances for programs or agencies that were undergoing
``rapidly changing conditions,'' giving the legislative
committees the opportunity to weigh in on a frequent basis.\16\
Programs that had a direct effect on States or districts, such
as those that govern military construction or grants, also were
candidates for annual authorizations. Legislative committees
often sought close oversight of such programs because of the
constituency issues involved and a desire to address any
problems as they arose.\17\ As a consequence of this frequent
legislative attention, agencies subject to annual
reauthorization tended to experience more incremental program
changes in their authorizing laws when compared to those
agencies on a longer reauthorization schedule.\18\
---------------------------------------------------------------------------
\14\ ``Annual Authorizations,'' p. 34.
\15\ Ibid., p. 37.
\16\ Ibid., p. 31.
\17\ Ibid., p. 30.
\18\ Legislation, Appropriations, and Budgets, p. 40.
---------------------------------------------------------------------------
Another motivation for the legislative committees to choose
annual authorization schedules during the post-World War II
period was dissatisfaction with the funding levels or program
structure as provided through the congressional appropriations
process.\19\ At this time, the authorization laws that were
enacted on an as-needed basis tended to be focused primarily on
policy issues and not budgetary decisionmaking. In addition,
any authorized levels for future fiscal years might have been
considered to be less relevant when it came time to appropriate
due to changing congressional priorities. Under an annual
authorization approach, however, the congressional debate over
the funding levels in the context of the authorization for that
fiscal year would occur more immediately ahead of the
consideration of appropriations for those programs. This
sequence and timing of events--authorizations are to precede
appropriations--was believed to provide the legislative
committees with greater leverage to prevent their framework and
authorized funding levels from being disregarded during
subsequent appropriations decisionmaking.\20\
---------------------------------------------------------------------------
\19\ Ibid., p. 39.
\20\ Ibid.
---------------------------------------------------------------------------
The proportion of agencies that were subject to annual
reauthorizations expanded significantly during the mid-20th
century. Prior to 1950, military construction and mutual
security were the only annual authorizations, both constituting
the conversion of a permanent authorization to a temporary one.
A few programs were added to that list in the 1950s, but it was
not until two decades later that a number of both small- and
large-scale government programs, such as the remaining
activities of the Department of Defense authorization, the
Department of Justice, and the Department of State, were added
to the group of government programs that received an annual
authorization in response to developments such as the Vietnam
war.\21\ Also during this period, the number of annual
authorizations that applied only to some programs within an
agency was expanded to include additional programs or
activities of a like character.\22\
---------------------------------------------------------------------------
\21\ ``Annual Authorizations,'' pp. 26-27.
\22\ For example, within the Department of Defense, the first
temporary authorization was for military construction, and then the
practice was expanded sequentially to military procurement, research
and development, the Coast Guard and the Maritime Administration, and
then finally to military operation and maintenance. ``Annual
Authorizations,'' p. 32.
---------------------------------------------------------------------------
multiyear authorizations
During the same period that annual authorizations of
appropriations were increasingly used, provisions authorizing
appropriations on a multiyear basis to facilitate a longer term
reauthorization schedule were also enacted. The length of these
schedules varied, from as little as 2 fiscal years to 5 or
more. The agency oversight motivations for the legislative
committees to adopt such a schedule were similar to those for
an annual reauthorization, with some exceptions.\23\ For
example, a legislative committee might choose a multiyear
reauthorization schedule over an annual one if it believed that
a program or agency required a comprehensive reevaluation of
its activities and objectives on longer time intervals. Also,
as a consequence of the greater time allotted by this schedule,
multiyear reauthorizations tended to involve more widespread
policy changes per reauthorization law when compared to annual
reauthorizations.\24\
---------------------------------------------------------------------------
\23\ Improving Congressional Control over the Budget, p. 261.
\24\ Legislation, Appropriations, and Budgets, p. 40.
---------------------------------------------------------------------------
As was the case for annual authorizations, multiyear
authorizations may have been motivated, in some instances, by
dissatisfaction on the part of the legislative committees with
the funding that was being provided in appropriations. In many
cases, multiyear authorizations assumed some degree of a
funding increase over the period covered by the authorization,
and so their enactment had the potential to build congressional
support for such an increase. In many such cases, however, the
difference between the amounts authorized and that ultimately
appropriated increased in the latter years, perhaps because the
congressional vote on authorization levels was neither recent,
nor in the context of current funding constraints.\25\
---------------------------------------------------------------------------
\25\ Improving Congressional Control over the Budget, p. 268;
Legislation, Appropriations, and Budgets, p. 41.
---------------------------------------------------------------------------
Summary of Most Recent Developments
Starting in the 1980s, some of the programs that had been
subject to an annual or short-term authorization schedule were
changed to longer term multiyear schedules.\26\ Others had
authorizations that expired for a number of fiscal years
between reauthorizations, or were not renewed at all.\27\ With
the formation of new agencies, it has been most typical that
only specific activities within them, as opposed to the entire
agency, have been given explicit authorizations of
appropriations.\28\ For example, while some of the agencies and
activities created or consolidated by the Homeland Security Act
of 2002 (P.L. 107-296) were already subject to temporary
authorizations of appropriations, there were few provisions
explicitly authorizing appropriations for the new agencies and
activities included in the act, and none that were effective on
an annual basis. In general, the reauthorization process for
many agencies and programs has become more focused on
addressing policy concerns, with less of an emphasis on funding
level or the legislative committee's role in budgetary
decisionmaking.
---------------------------------------------------------------------------
\26\ For example, both the NSF and NASA were transitioned to
multiyear schedules, as discussed in the sections below.
\27\ One potential measure of the extent to which previously
routine authorizations of appropriations for programs have expired is
the enactment of appropriations for such programs. CBO is required to
compile this information each year under section 202(e)(3) of the
Congressional Budget Act. For FY1988, CBO identified a total of 45 laws
with expired authorizations of appropriations (CBO, Report on
Unauthorized Appropriations and Expiring Authorizations, January 15,
1988). That total grew to 270 such laws for FY2014 (CBO, Unauthorized
Appropriations and Expiring Authorizations, February 21, 2014).
\28\ See, for example, the data on James M. Cox, An Analysis of the
Congressional Reauthorization Process (Westport, CT: Praeger, 2004),
pp. 55-59.
---------------------------------------------------------------------------
Various reasons have been suggested for the shift to longer
term reauthorization schedules and the gaps between
reauthorization intervals. For example, some have argued that
reauthorization legislation was effectively ``crowded out'' by
new mechanisms for budgetary decisionmaking (such as the budget
resolution and reconciliation) and were given less of a
priority in the congressional calendar. Others began to express
concern that annual authorizations led to a perception that
they were merely duplicate votes for Members on funding levels
for Federal Government activities.\29\ In addition, continued
delays in the enactment of reauthorization legislation, which
affected Congress' ability to consider and enact appropriations
measures in a timely manner, were also a likely factor.\30\
---------------------------------------------------------------------------
\29\ For a discussion of these and other reasons for this shift,
see, for example, Alan Schick, The Federal Budget: Politics, Policy,
Process, 3d Ed. (Washington, DC.: Brookings Institution Press, 2007),
pp. 200-202; Lawrence J. Haas, ``Unauthorized Action,'' National
Journal, January 2, 1988, p. 17.
\30\ This is illustrated by the NSF and NASA case studies below.
---------------------------------------------------------------------------
Changes to Authorizations of Appropriations in Practice: Selected
Examples
The historical development of the form and timing of
authorizations over the past century has been characterized by
a number of themes:
The legislative committee's adoption of an annual
reauthorization schedule was due to a desire for increased
involvement in both agency and congressional budgetary
decisions. The motivation for increased agency involvement was
typically because the agency was new or because annual
authorizations were believed to strengthen Congress' oversight
functions.
Annual authorizations tended to be characterized by
incremental program changes, whereas multiyear authorizations
tended to involve widespread policy changes.
The amounts authorized in annual measures tended to be more
similar to the amount eventually appropriated when compared to
multiyear authorizations. The out-years of multiyear
authorizations tended to be characterized by a growing gap
between the amount authorized and the amount appropriated.
To illustrate one or more of these general themes, the
following subsections summarize aspects of the authorization
histories of the National Science Foundation, the National
Aeronautics and Space Administration, and the Peace Corps.
These three agencies were selected because they have
experienced variation in the purposes and frequency of their
explicit authorizations of appropriations since their
establishment. These case studies also discuss the reasons for
the shifts to the new authorization schemes, such as the
legislative committee's decisions to review and make policy
changes to the program on a less frequent schedule, or
difficulties enacting annual authorizations prior to
appropriations. During this period, the form of the
authorization laws governing these agencies changed in a number
of other significant ways that affected the ability of the
legislative committees to influence budgetary outcomes, which
are not discussed in this report. This report only summarizes
the general trends associated with the timing and purposes of
these reauthorizations to provide a basis for further research
and understanding.
National Science Foundation
The National Science Foundation (NSF) was established in
1950, but was not reauthorized on a periodic basis until 1968,
when a requirement for specific authorization of appropriations
each future fiscal year became law. Authorizations of
appropriations were enacted annually covering a single fiscal
year from FY1969 through FY1982, and intermittently through
FY1988. Starting in FY1989, the agency has been reauthorized
for periods of between 3 and 5 fiscal years, with some lapses
in authorization between those multiyear laws. The most recent
reauthorization was from FY2011 through FY2013.\31\
---------------------------------------------------------------------------
\31\ For an overview of historical policy issues associated with
the NSF and its authorization, see CRS Report R43585, The National
Science Foundation: Background and Selected Policy Issues, by Heather
B. Gonzalez.
---------------------------------------------------------------------------
establishment and transition to a permanent authorization of
appropriations
The NSF was established by the National Science Foundation
Act on May 10, 1950 (S. 247; P.L. 81-507). During congressional
consideration in the 81st Congress, both the Senate and House
proposals (S. 287, H.R. 12, and H.R. 359, 81st Congress)
contained provisions providing a permanent indefinite
authorization of appropriations for the agency. During debate
on the House floor, however, the bill was amended to provide a
definite authorization of appropriations for FY1951, and a $15
million authorization for each fiscal year thereafter. The
rationale for this approach was that it would promote increased
agency fiscal accountability to Congress, because the agency
would be required to justify to Congress a higher authorization
level once its annual budgetary needs exceeded $15 million.\32\
The House version of that provision was subsequently enacted
into law.\33\
---------------------------------------------------------------------------
\32\ House debate, Congressional Record, vol. 96, part 2 (February
28, 1950), p. 2517. Although the form and frequency of reauthorization
has shifted over the history of the NSF, the President's budget
submission has typically played a significant role in budgetary
decisionmaking. For further information, see CRS Report R43585, The
National Science Foundation: Background and Selected Policy Issues, by
Heather B. Gonzalez.
\33\ P.L. 81-507, Sec. 16(a), ``To enable the Foundation to carry
out its powers and duties, there is hereby authorized to be
appropriated to the Foundation, out of any money in the Treasury not
otherwise appropriated, not to exceed $500,000 for the fiscal year
ending June 30, 1951, and not to exceed $15,000,000 for each fiscal
year thereafter.''
---------------------------------------------------------------------------
The first reauthorization was enacted 3 years later, on
August 8, 1953 (S. 32; P.L. 83-223). This law replaced the $15
million authorization limit with an indefinite authorization of
appropriations. The Senate Labor and Public Welfare Committee
report accompanying S. 32 (83d Congress) explained that this
indefinite authorization was to provide the NSF greater
flexibility in both its annual budget request and fiscal
planning for its operations. Because the committee believed
that removing this limitation would not lead to an overall
increase in government research expenditures, this change to
the law was recommended.\34\
---------------------------------------------------------------------------
\34\ S. Rept. 83-396, pp. 1-2.
---------------------------------------------------------------------------
There were no further laws authorizing NSF appropriations
for the next 15 years. During that period, the few laws that
made any changes to the statutory programs and policies
governing the NSF typically included only minor modifications
to existing programs and policies.\35\ The more significant
changes to the NSF came through administration action, such as
executive orders and the Government Reorganization Plan No. 2
of 1962.\36\ Legislative committee oversight of the agency
occurred on a more informal basis.
---------------------------------------------------------------------------
\35\ See, for example, P.L. 85-510, which related to weather
modification, and P.L. 85-864, which related to science information.
\36\ See, for example, Executive Order 10521 (March 17, 1954),
which broadened the NSF's role to encompass national scientific
policymaking, and Executive Order 10807 (March 29, 1962) which
refocused the Foundation's mission on original research. See also
Reorganization Plan No. 2 of 1962, June 8, 1962 (27 Federal Register
5419), which transferred elements of governmentwide policymaking and
program evaluation from the NSF to a new Office of Science and
Technology. For background on reorganization plans, see CRS Report
R42852, Presidential Reorganization Authority: History, Recent
Initiatives, and Options for Congress, by Henry B. Hogue.
---------------------------------------------------------------------------
transition to annual reauthorization
Starting in 1965, the House Committee on Science and
Astronautics began a 3-year review of the NSF to write a new
charter for the agency. This review involved hearings, studies,
and a subcommittee report that was to be the basis of the
committee's eventual legislative proposal.\37\ In 1967, the
committee report accompanying H.R. 5404 (90th Congress)
explained a variety of motivations for this review and the
recommended changes to the agency:
---------------------------------------------------------------------------
\37\ This process is discussed in U.S. House of Representatives,
Committee on Science and Technology, Toward the Endless Frontier:
History of the Committee on Science and Technology, 1959-79, Committee
Print (Washington, DC: GPO, 1980), p. 143 (hereinafter, House Science
Committee History).
A significant change began to take place in the post-
Sputnik era. From a technological point of view, public opinion
crystallized around the concept that basic science was no
longer an ancillary, but a primary, instrument needed to guard
the public safety, health and economy . . . . It becomes
apparent, upon review of the hearings en bloc, that the most
crucial point--in fact, what some would call the essence of the
bill--was the issue of policy control [of the National Science
Board]. [H. Rept. 90-34, pp. 2 and 13] \38\
---------------------------------------------------------------------------
\38\ Congressional concern over policy control had been in
existence almost since the establishment of the NSF. For background on
these concerns, see House Science Committee History.
While the changes to the NSF proposed by the House did not
involve any alterations to the current authorization of
appropriations, the Senate Labor and Public Welfare Committee
amended H.R. 5404 to include both a definite authorization of
appropriations for FY1969 and a permanent requirement for a
specific authorization of appropriations for every fiscal year
---------------------------------------------------------------------------
thereafter:
The committee is concerned that there has been no thorough
review of the authorization for NSF since the passage in 1950
of the National Science Foundation Act. During this period, the
appropriations have grown from $225,000 in 1951 to $495 million
in 1968--a more than 2,000-fold increase. The committee
believes that a change to annual authorization is desirable,
and provides for this in section 13 of the bill. An
authorization of $523 million is provided for fiscal year 1969.
This committee will set authorizations for future years after
appropriate hearings. [S. Rept. 90-1137, p. 19] \39\
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\39\ For further background on the FY1969 annual authorization, see
House Science Committee History, p. 146.
The ability for annual authorizations to influence
subsequent funding decisions is affected by the extent to which
they are enacted ahead of appropriations. After the NSF's
requirement for an annual authorization was enacted (P.L. 90-
407),\40\ the 15 subsequent annual reauthorizations became law
an average of almost 1 month after the beginning of the fiscal
year, and only three times were they enacted before the
beginning of the fiscal year (FY1978, FY1980, and FY1986).\41\
The enactment of appropriations, however, usually waited until
the annual authorization was completed, with only 3 of the 15
being enacted ahead of it (FY1972, FY1977, and FY1979).
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\40\ P.L. 90-407, Sec. 14(a), ``To enable the Foundation to carry
out its powers and duties, there is hereby authorized to be
appropriated to the foundation for the fiscal year ending June 30,
1969, the sum of $525,000,000; but for the fiscal year ending June 30,
1970, and each subsequent fiscal year, only such sums may be
appropriated as the Congress may hereafter authorize by law.'' At the
time that the requirement for an annual authorization was being debated
by Congress, both the Johnson administration and the House
Appropriations Committee expressed concerns that an annual schedule
might delay the enactment of appropriations (S. Rept. 90-1137, p. 34
and floor debate (114 Congressional Record part 15, June 27, 1968, 90th
Cong, 2d sess., p. 19068)).
\41\ These laws were for each fiscal year from FY1970 to FY1982,
FY1987, and FY1988. No reauthorization laws were enacted for the fiscal
years from FY1983 to FY1986; the reason for this lapse in authorization
does not appear to have been related to any disputes over the time
interval.
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In general, these annual authorizations were followed by
appropriations that were at somewhat lower levels than the
amount authorized.\42\ Of the 12 annual authorizations that
were enacted prior to appropriations, all but one (FY1986; P.L.
99-383) subsequently received lower levels of
appropriations.\43\ In those 11 instances, the amount
appropriated was an average of almost 7 percent lower than the
amount authorized, ranging from about 1 percent lower in FY1980
to almost 24 percent lower in FY1969.\44\
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\42\ The amount appropriated each fiscal year upon which these and
similar calculations in this report are based from National Science
Foundation, Budget Internet Information System, ``NSF Requests and
Appropriations History,'' NSF.gov, (http://dellweb.bfa.nsf.gov/
NSFRqstAppropHist/NSFRequestsandAppropriationsHistory.pdf), and
additional data compiled in CRS Report R43585, The National Science
Foundation: Background and Selected Policy Issues, by Heather B.
Gonzalez.
\43\ In FY1986, the amount of appropriations exceeded the
authorized level by less than 1 percent.
\44\ Despite the fact that the amounts annually appropriated tended
to be less than the authorization, however, the amount of such annual
appropriations doubled twice in the decades between FY1970 and FY1988.
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transition to multiyear reauthorization
Starting in 1977, Congress began to actively debate
transitioning the NSF to a multiyear authorization of
appropriations. This change was advocated by the Carter
administration and some Senators on the Committee on Human
Resources because it was believed that a multiyear
authorization would promote continuity for planning basic
research and more time to assess the effectiveness of
programs.\45\ Many members of the House Science Committee
argued, however, that an annual authorization would promote
better congressional control and oversight of the
foundation.\46\ Although the conference report for the FY1978
reauthorization addressed the possibility of a 2-year
authorization of appropriations, it concluded that it was not
suitable at that time.\47\ The following fiscal year, while the
Senate committee proposed authorizations of appropriations for
both FY1979 and FY1980 (S. 2549), authorization levels for only
a single fiscal year were ultimately enacted into law (P.L. 96-
44). Over the next 10 years, most legislative proposals covered
only a single fiscal year, and all that were enacted were
annual in nature.
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\45\ U.S. Senate, Committee on Human Resources, Subcommittee on
Health and Scientific Research, ``National Science Foundation
Authorization Legislation, 1977,'' March 1 and 3, 1977 (Washington, DC:
GPO, 1977), p. 112 and 117.
\46\ House Science Committee History, pp. 537-538.
\47\ H. Rept. 95-509, pp. 7-8.
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In FY1989, both the House and Senate proposed multiyear
authorizations, and the enacted law authorized appropriations
through FY1993 (P.L. 100-570). One of the primary purposes of
this reauthorization was to promote the ``doubling'' of the NSF
budget over the next 5 fiscal years and to establish a program
directed at academic facility modernization. The next
reauthorization, for FY1998-FY2000, authorized modest increases
for the agency--about 10 percent in FY1999 and growth slightly
above projected inflation in FY2000 (P.L. 105-207).\48\ The
next reauthorization advocated more substantial increases in
the agency budget--from about $5 billion in FY2003 to almost
$10 billion in FY2007 (P.L. 107-368). The two most recent laws,
for FY2008-FY2010 and FY2011-FY2013, were enacted as part of
the America COMPETES Act and its reauthorization, which broadly
sought to invest in innovation and improve U.S.
competitiveness. It authorized funds for research and
development in the physical sciences and engineering, as well
as certain science, technology, engineering, and mathematics
(STEM) education programs.\49\ Both reauthorizations
recommended appropriations at a rate to double agency funding
over a 7-year period starting in FY2008, and an 11-year period
starting in FY2011.
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\48\ The authorizations of appropriations in P.L. 105-207 were
effectively for 2 fiscal years because they were enacted over 9 months
after the start of FY1998.
\49\ P.L. 110-69 and P.L. 111-358. For information on the other
agencies that were reauthorized as part of these laws, see CRS Report
RL34328, America COMPETES Act: Programs, Funding, and Selected Issues,
by Deborah D. Stine, and CRS Report R41819, Reauthorization of the
America COMPETES Act: Selected Policy Provisions, Funding, and
Implementation Issues, by Heather B. Gonzalez.
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When compared to the period for which the NSF was
authorized on an annual basis, NSF appropriations after FY1989
tended to be much lower than the amount authorized. Gaps
between the authorization and subsequent appropriations also
widened in the latter years of the authorization period,
particularly when the authorization assumed significant
budgetary increases over that multiyear period. For example,
for FY1989-FY1993, the first attempt at doubling, the
difference between the authorization and subsequent
appropriations began as about 6 percent for FY1989 and
increased to 22 percent by FY1993.\50\ The more modest
increases proposed by the FY1998 reauthorization resulted in a
much smaller appropriations gap--almost 3 percent less than the
authorized level for FY1999, and almost 1 percent more than
authorized for FY2000. Even though the projected increases in
the two most recent doubling proposals (FY2008-FY2010 and
FY2011-FY2013) were over a longer time horizon, these also
experienced increasing gaps in the outyears.\51\
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\50\ Actual annual appropriations during this 5-year period
experienced about a 70-percent increase, but fell short of the doubling
goal.
\51\ For FY2008, appropriations were 7.2 percent less than the
authorization, but were 15 percent less 2 years later. The gap between
the authorization and appropriation was about 8 percent in FY2011, and
grew to about 17 percent in FY2013. The actual increase in
appropriations between FY2008 and FY2013 was about 12 percent.
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National Aeronautics and Space Administration
The National Aeronautics and Space Administration (NASA)
transitioned to an annual authorization schedule 3 years after
it was established in 1958, and was reauthorized each fiscal
year from FY1961 through FY1986. Starting in FY1982, however,
the agency's annual authorization schedule began to experience
increasing delays, culminating in a 6-year gap in
reauthorization from FY1994 through FY1999. In recent years,
the agency has been periodically reauthorized for between 1 and
3 fiscal years, with the most recent reauthorization covering
FY2011-FY2013.\52\
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\52\ For an overview of historical policy issues associated with
NASA and its authorization, see CRS Report R43144, NASA: Issues for
Authorization, Appropriations, and Oversight in the 113th Congress, by
Daniel Morgan.
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establishment and transition to annual reauthorization
When the National Aeronautics and Space Act (``the Space
Act,'' P.L. 85-568) established NASA in 1958, it explicitly
authorized permanent, indefinite appropriations for agency
operations. It also required specific authorization for capital
expenditures.\53\ At the beginning of the 85th Congress, a few
months prior to the enactment of the Space Act, the House had
established the Committee on Science and Astronautics (now
Science, Space, and Technology) to oversee this new agency. The
Senate also created the Committee on Aeronautical and Space
Sciences for a similar purpose.\54\ As these new committees
were developing an understanding of NASA's programmatic
capabilities and fiscal requirements, it was thought that
frequent reauthorization was a process through which this
understanding could be achieved more expeditiously.\55\
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\53\ P.L. 85-568, Sec. 307(a), ``There are hereby authorized to be
appropriated such sums as may be necessary to carry out this Act,
except that nothing in this Act shall authorize the appropriation of
any amount for (1) the acquisition or condemnation of any real
property, or (2) any other item of a capital nature (such as plant or
facility acquisition, construction, or expansion) which exceeds
$250,000. Sums appropriated pursuant to this subsection for the
construction of facilities, or for research and development activities,
shall remain available until expended.''
\54\ Jurisdiction over NASA was transferred to the Commerce,
Science, and Transportation Committee when the Senate Science Committee
was dissolved in 1977.
\55\ Thomas P. Jahnige, ``The Congressional Committee System and
the Oversight Process: Congress and NASA,'' Western Political
Quarterly, Vol. 21, No. 2 (June 1968), pp. 222-239.
---------------------------------------------------------------------------
NASA's transition to an annual authorization of
appropriations occurred in stages over the next few years.
First, the FY1958 supplemental appropriations bill for NASA
(P.L. 85-766) included a provision that required the enactment
of a specific authorization of appropriations for each fiscal
year through the end of FY1960. As initially drafted, this
provision provided a permanent requirement for a specific
authorization, under the rationale that such a requirement,
which would presumably have been carried out through an annual
reauthorization schedule, would provide accountability and
oversight to the legislative committees of jurisdiction. The
provision was revised prior to enactment to allow a 1-year
trial run of the concept after criticism that it would place an
unnecessary burden on NASA and lead to duplication in
congressional efforts.\56\ The first reauthorization of NASA,
for FY1959 supplemental appropriations, did not address the
general requirement for specific authorization, set to expire
the following fiscal year (P.L. 86-12). In the process of
considering reauthorization legislation for FY1960, however,
both the House and Senate proposed extensions of the specific
requirement for the purpose of imposing an annual authorization
process. The House Science Committee, in H.R. 7007 (86th
Congress), included an extension of the requirement through
FY1965.\57\ Subsequently, the Senate Science Committee removed
the House's termination date for the provision:
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\56\ The negotiations and various congressional perspectives on
this requirement are discussed in House Science Committee History, p.
24.
\57\ The House rationale for this provision is discussed in H.
Rept. 86-321, p. 35.
Because of the nature of the space program, rapid and
substantial changes as to magnitude, direction, and detail can
be expected to continue indefinitely. For this reason the
committee deleted the terminal date of July 30, 1965, on the
authorization requirement, thereby making the requirement of
---------------------------------------------------------------------------
indefinite duration. [S. Rept. 86-332, p. 47]
The same arguments that had been made against the temporary
requirement were made against making it permanent--in
particular, that an annual reauthorization process for the
agency would lead to delays in the completion of annual
appropriations.\58\ Nevertheless, the enacted law included the
Senate's version, and this requirement has continued to apply
to NASA appropriations to the present day.\59\
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\58\ Ibid., p. 49-50.
\59\ P.L. 86-45, Sec. 4, ``Notwithstanding the provisions of any
other law, no appropriation may be made to the National Aeronautics and
Space Administration unless previously authorized by legislation
hereafter enacted by the Congress.''
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For FY1961 through FY1981, NASA was reauthorized on an
annual basis, and the appropriations authorized by these annual
laws almost always covered only a single fiscal year.\60\ On
average, the annual reauthorizations were enacted after the
beginning of the fiscal year just over half of the time during
this period. However, they were enacted ahead of appropriations
each fiscal year except for FY1979 (P.L. 95-401), which was
signed into law on the same day as the appropriations measure.
On average, these reauthorizations were enacted about 2 months
in advance of appropriations (67 days).
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\60\ The one exception occurred in the FY1976 reauthorization (P.L.
94-39), which authorized appropriations for FY1976 and FY1977 for
specific categories in both the research and development, and
construction/facilities accounts.
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The consistent enactment of annual authorizations in
advance of appropriations may have been a factor in minimizing
the difference between the total amount authorized and the
funding subsequently provided. The amount of appropriations was
on average less than 1 percent below the authorized level for
the agency.\61\ The most that appropriations ever exceeded the
authorized level was almost 6 percent in FY1980; the most they
fell short of the authorization was also almost 6 percent in
FY1968. In total, for 13 out of the 20 fiscal years during this
period, the amount authorized was higher than the amount
appropriated. In the remaining 7 fiscal years, the
appropriations equaled or exceeded the authorized level.\62\
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\61\ A list of authorization and appropriations laws was provided
by the NASA Office of Legislative Reference and Analysis. The
appropriated amounts used for the calculations in this section of the
report are from National Aeronautics and Space Report of the President,
2008, Appendix D-1A, p. 146.
\62\ During the early part of this period, until FY1970, the agency
budget increased more than sevenfold. Although this budgetary growth
slowed considerably during the next 10 fiscal years, the increase over
that period was still about 63 percent.
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In general, NASA tended to receive program direction from
Congress through authorization report language, as well as the
appropriations process during this period. Substantive,
nonadministrative policy changes to the agency or associated
programs were only occasionally enacted through the annual
reauthorizations. For example, the FY1976 law (P.L. 94-39)
enacted a new program authorization for upper atmospheric
research. Occasionally, changes to the agency or its associated
programs would also occur as part of broader laws that covered
multiple agencies, such as the Government Employees Salary
Reform Act of 1964 (P.L. 88-426) and the Electric Vehicle
Research, Development, and Demonstration Act (P.L. 94-413).
transition to periodic reauthorization
During the 1980s, space-related public policy concerns
rapidly expanded into new areas. Some significant events for
NASA included the completion of the first Space Shuttle
Columbia flight on April 12, 1984, and President Reagan's
announcement of plans to build a space station within the next
decade.\63\ Stand-alone authorization laws initiating new
programs that involved NASA were also enacted. For example, the
Commercial Space Launch Act (P.L. 98-575), which created a
government entity to regulate private launch companies, was
enacted in 1984. Other issues related to international
cooperation became both more important and controversial.\64\
NASA reauthorizations were increasingly used as a means to
enact significant space policy changes or expansions of NASA.
For example, the FY1985 reauthorization established the
National Commission on Space (P.L. 98-361), an advisory body to
develop a long-term national space strategy.
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\63\ For further information, see Roger Launius, Colin Fries, and
Abe Gibson, ``Defining Events in NASA History, 1958-2006,'' National
Aeronautics and Space Administration, updated January 2, 2012,
available at http://www.hq.nasa.gov/office/pao/History/40thann/
define.htm.
\64\ For example, at the beginning of the Reagan Presidency, the
administration decided to cancel the International Solar Polar Mission,
which was to have involved the construction of two spacecraft by NASA
and the European Space Agency. The conference report accompanying the
FY1982 and FY1983 reauthorizations expressed disapproval of the ISPM
cancellation (H. Rept. 97-351, p. 9; H. Rept. 97-897, p. 8).
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The increasing focus on space policy, as well as the fiscal
constraints affecting Federal budgeting during this era, may
have both been factors in the delays in completing NASA
reauthorization laws after FY1981.\65\ In general,
reauthorizations after this time were enacted much closer to
appropriations than in the first two decades of the agency--2
days ahead of the appropriation in FY1982, 15 days behind the
appropriation in FY1983, 27 days ahead in FY1985, 2 days ahead
in FY1985, and 10 days behind in FY1986. In FY1987, no
reauthorization was enacted, because H.R. 5495 (99th Congress)
was pocket vetoed by the President over the inclusion of
provisions that would reestablish the National Aeronautics and
Space Council.\66\ The broader policy context for this dispute
related to the Space Shuttle Challenger explosion, which had
occurred 9 months before the start of the fiscal year, and
congressional dissatisfaction with the administration's
response to it.
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\65\ The effect of these fiscal constraints on the NASA
authorization is discussed, for example, in H. Rept. 97-351, p. 8, and
H. Rept. 99-379, p. 9.
\66\ President Reagan explained this veto thus: ``The establishment
of a National Space Council in the Executive Office of the President
would constitute unacceptable interference with my discretion and
flexibility in organizing and managing the Executive Office as I
consider appropriate.'' (President Ronald Reagan, ``Memorandum of
Disapproval of the National Aeronautics and Space Administration
Funding Bill,'' November 14, 1986.) The congressional rationale for
this council is discussed in H. Rept 99-829, p. 15.
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In the latter part of the 1980s, reauthorization laws
continued to address broad space policy issues. They also
experienced further delays in enactment. While the FY1988
reauthorization was enacted 54 days ahead of appropriations,
for all other fiscal years through FY1993, the reauthorization
was enacted an average of about 42 days after appropriations.
No reauthorization was enacted at all for FY1990, as the House
and Senate failed to resolve their differences over their
respective versions of the legislation (H.R. 1759 and S. 916,
101st Congress).
Perhaps related to these difficulties in enacting
reauthorizations in a timely manner, the House Science
Committee started in FY1989 to propose authorizations of
appropriations for 3 fiscal year periods for many major
activities, such as line items under the research and
development and space flight accounts. These multiyear
reauthorizations also typically included proposals for long-
term program or policy initiatives. In contrast, the Senate
Commerce Committee versions continued to recommend
authorizations of appropriations for a single fiscal year only,
and tended to include fewer long-term policy proposals.
While the authorizations continued to provide funding
amounts for a single fiscal year,\67\ the groundwork was laid
for a longer term authorization schedule through other means.
For example, the FY1989 reauthorization required NASA to
compile a 5-year capital development plan and a 10-year
strategic plan. The act also directed that, starting in FY1990,
NASA submit a 3-year budget request. In FY1992, this directive
appears to have been superseded by a new requirement for a 5-
year budget submission for all programs that exceed $200
million (P.L. 102-195).
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\67\ An exception to this was in FY1989, when the Space Station was
reauthorized for FY1989-FY1991 (P.L. 100-685).
---------------------------------------------------------------------------
During the past 15 years, NASA reauthorizations have been
enacted on a periodic basis, typically covering more than a
single fiscal year, but not on any set schedule. These laws
were often in response to policy developments instigated by the
administration, such as the Vision for Space Exploration
program in 2004.\68\ For the FY2000-FY2002 reauthorization
(P.L. 106-391), the multiyear interval for reauthorization
appears to have been uncontroversial, as both the House (H.R.
1654) and Senate (S. 342) versions authorized appropriations
for that 3-year period. The second reauthorization to be
enacted during this period was for FY2007-FY2008 (P.L. 109-
155).\69\ While the House version (H.R. 3070) provided a 2-year
authorization of appropriations, the Senate version (S. 1281)
had authorizations on a longer time horizon, through FY2010.
For the FY2009 reauthorization, both the House and Senate
versions proposed funding amounts for only a single fiscal year
(P.L. 110-422; H.R. 6063, 110th Congress). The most recent
reauthorization law covered 3 fiscal years, FY2011-FY2013 (P.L.
111-267).
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\68\ For further information, see CRS Report R43144, NASA: Issues
for Authorization, Appropriations, and Oversight in the 113th Congress,
by Daniel Morgan.
\69\ For FY2003-FY2006, little congressional action occurred to
reauthorize NASA, and no such laws were enacted. In the 107th Congress,
no action occurred on attempts to reauthorize in the House or the
Senate. In the 108th Congress, the Senate Commerce Committee reported
S. 2541, to reauthorize appropriations for FY2005-FY2009, but no
further action occurred.
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Along with the trend toward the periodic enactment of
multiyear reauthorizations, there has been an increase in the
difference between the amounts that were authorized and those
that were subsequently appropriated. Appropriations for FY2001
and FY2002, enacted after the FY2000-FY2002 reauthorization,
were slightly higher than the authorization. However, the gap
between authorizations and appropriations became more
pronounced during the FY2007-FY2008 period. The FY2009
reauthorization, enacted 15 days after the appropriations bill,
was almost 14 percent higher than the actual funding level. And
even though the FY2011-FY2013 reauthorization was enacted about
5 months ahead of appropriations for FY2011, appropriations
subsequently enacted were about 3 percent lower than the
authorization in FY2011, 9 percent lower than the authorization
in FY2012, and over 12 percent lower than the authorization in
FY2013.\70\
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\70\ This calculation does not include the reduction in FY2013
appropriations due to the sequester ordered on March 1, 2013. In total,
the appropriations increase between FY2001 and FY2013 was about 22
percent.
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Peace Corps
Appropriations for the Peace Corps were annually authorized
each fiscal year--from its establishment in 1961 through
FY1981. Starting with the FY1982 reauthorization, which was for
a 2 fiscal year period, the agency began to experience gaps in
its enactment of reauthorization and it transitioned to a
multiyear schedule. Since that time, reauthorizations of
appropriations have been enacted intermittently, most recently
for the FY2000-FY2003 time period, but not thereafter.\71\
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\71\ For an overview of historical policy issues associated with
the Peace Corps and its authorization, see CRS Report 98-215, The Peace
Corps: Background and Issues for Congress, by Curt Tarnoff.
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establishment and early annual reauthorizations
The Peace Corps was permanently established through the
Peace Corps Act, which was enacted on September 22, 1961 (P.L.
87-293).\72\ That act carried a provision that authorized a
specific sum for FY1962 Peace Corps appropriations.\73\ While
this provision arguably indicated congressional intent to
reauthorize the agency the following fiscal year, there appears
to have been little discussion in the legislative history of
the act of any potential annual schedule for
reauthorization.\74\ In the broader context of foreign affairs
authorization laws that were enacted during this period,
congressional review of those programs and any associated
legislative action had tended to occur on an as-needed basis.
In addition, until the enactment of P.L. 91-671, which imposed
a general requirement for explicit authorizations of
appropriations on foreign affairs spending, few explicit
authorizations of appropriations had ever been enacted for
ongoing programs.\75\ Consequently, the motivation for an
annual schedule, at least initially, appears to have been
driven by the newness of the agency.
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\72\ The Peace Corps was first established on a temporary basis
through Executive Order 10924 on March 1, 1961.
\73\ P.L. 87-293, Sec. 3(b), ``There is hereby authorized to be
appropriated to the President for the fiscal year 1962 not to exceed
$40,000,000 to carry out the purposes of this Act.''
\74\ For example, the reauthorization schedule was not discussed at
any of the House Foreign Affairs Committee hearings on establishing the
Peace Corps, nor was it addressed in the conference report for H.R.
7500. See U.S. House of Representatives, Committee on Foreign Affairs,
The Peace Corps, House Hearings, August 11 and 15, 1961 (Washington,
DC: GPO, 1961); H. Rept. 97-1237.
\75\ P.L. 91-672, the Foreign Military Sales Act amendments
contained the following provisions, codified at 22 U.S.C. 2412(a):
``Notwithstanding any provision of law enacted before January 12, 1971,
no money appropriated for foreign assistance (including foreign
military sales) shall be available for obligation or expenditure--(1)
unless the appropriation thereof has been previously authorized by law;
or (2) in excess of an amount previously prescribed by law.''
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The following year, the first reauthorization law for the
Peace Corps was enacted, consisting of a single sentence that
provided a definite authorization of appropriations for FY1963
(P.L. 87-442). In the lengthy report accompanying H.R. 10700,
the committee explained the purpose of this legislation:
The situation confronting the committee and the Congress is
that there appear to be no developments during the first year
of operation which give rise to any question as to the
soundness of the Peace Corps concept, or which indicate that
its program is too ambitious. The record of the managers of the
Peace Corps merits continued confidence.
The basic problem is, therefore, whether or not the
requested authorization of $63,750,000 is justified. The
committee has considered the method by which the financial
requirements for fiscal 1963 were calculated, the nature of the
programs to be financed and the foreign policy problems which
confront the United States in the various countries involved.
On the basis of this analysis, the planned rate of expansion
appears to be realistic, the cost estimates reasonable, and the
authorization requested to be justified. [H. Rept. 87-1470, p.
4]
The committee's report language also discussed the work of
the Peace Corps the previous fiscal year, and potential
developments for the upcoming fiscal year.
Over the next 15 years, FY1964-FY1979, the agency was
reauthorized on an annual basis, almost always through a stand-
alone authorization law.\76\ About half the reauthorization
laws during this period only updated the prior authorization of
appropriations with regard to the fiscal year and amount,
leaving the other parts of the law largely unchanged. In these
instances, however, the House Foreign Affairs and Senate
Foreign Relations Committees often used reauthorization as an
opportunity to communicate to both Congress and the agency
their assessment of a wide variety of other agency issues. For
example, the Senate report language associated with the
reauthorization for FY1969 addressed issues such as the current
status of Peace Corps agency and volunteer operations, as well
as ongoing committee concern related to the administrative
costs associated with various programs.\77\
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\76\ Only the FY1973 Peace Corps reauthorization was enacted as
part of an omnibus reauthorization act, Title IV of the Foreign
Relations Authorization Act of 1972 (P.L. 92-352).
\77\ S. Rept. 90-1095.
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The annual reauthorization process was also used to
implement changes in the underlying law, often in response to
new developments within the agency. For example, in 1971 the
Peace Corps was merged into a new volunteer service agency
called ACTION.\78\ Although the Peace Corps' underlying mission
remained the same, the annual authorization process, both
before and after 1971, was used to oversee and structure its
merger with ACTION and to review other agency concerns. In the
FY1970 reauthorization (P.L. 99-199), provisions were included
to restrict the use of Peace Corps funds for other volunteer
and training programs. And the FY1975 and FY1976
reauthorizations (P.L. 93-302 and P.L. 94-76) mandated
statutory transfers of Peace Corps appropriations to finance
increases in certain volunteer benefits.
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\78\ This reorganization was made effective by Executive Order
11603, which was issued pursuant to Reorganization Plan 1.
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Both the frequency of the reauthorization and its funding
specificity were viewed by Congress as important tools of
agency oversight. Late in this period, there was some dispute
between Congress and the President with regard to both issues.
In FY1977, the President's budget submission requested a 2-year
authorization for the Peace Corps, with a definite amount for
FY1977 and such sums as may be necessary for FY1978. The House
Foreign Affairs Committee responded to the administration's
request in the committee report accompanying H.R. 12226:
The Executive Branch requested a two-year authorization for
the Peace Corps--$67,155,000 for fiscal 1977 and such sums as
may be necessary for fiscal 1978. Because the Committee has
believed that such open-ended authorizations are unwise and
because it was not possible for the Peace Corps to come forward
with a firm fiscal 1978 figure, the authorization was limited
to a single year. [H. Rept. 94-874, p. 3]
The Senate version provided a definite 1-year authorization
of appropriations and did not comment on the administration's
proposal.\79\ The administration requested a ``such sums'' 2-
year authorization of appropriations the following year, which
was also rejected by the House and the Senate. The next year,
when this 2-year proposal was suggested and rejected yet
another time, the Senate noted, ``Each year the Peace Corps has
submitted a request for an open-ended authorization, and each
year the Congress has rejected these requests on the basis that
congressional oversight responsibilities are best exercised
through the annual authorization and appropriations
processes.'' \80\
---------------------------------------------------------------------------
\79\ S. Rept. 94-757.
\80\ S. Rept. 95-807, p. 8.
---------------------------------------------------------------------------
transition to intermittent reauthorization
Starting in FY1980, a number of significant changes for the
Peace Corps occurred, both in terms of its status as an agency
as well as congressional practices associated with its
reauthorization. After the Peace Corps was reestablished as an
independent agency, provisions in the FY1981 reauthorization
further facilitated this transition (P.L. 96-533), and
subsequent reauthorizations became focused on new policy
developments within the agency.\81\ During this period,
Congress also experimented with changes in the vehicle and
timing of the reauthorization. The first such change occurred
with the FY1980 and FY1981 reauthorizations (P.L. 96-53 and
P.L. 96-533), where the Peace Corps was reauthorized as part of
a larger omnibus foreign aid vehicle. The FY1981
reauthorization was notable for at least two other reasons.
First, it was enacted after the start of the fiscal year, on
December 16, 1980, which was much later than was typical.
Second, it was enacted on the same day as FY1981 Peace Corps
appropriations. The next reauthorization, also enacted on the
same day as FY1982 appropriations, included further changes in
practice, in authorizing appropriations for both FY1982 and
FY1983 (P.L. 97-133). While there was no indication given at
that time of a broader change in the authorization interval,
the next authorization of appropriations was also for 2 fiscal
years (FY1986 and FY1987), and was enacted after almost a 4-
year lapse.\82\ These authorized levels were updated a year
later through a provision in the foreign relations
reauthorization.\83\
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\81\ The Peace Corps was reestablished as an independent agency by
Executive Order 12137 on May 16, 1979.
\82\ The Senate version, S. 960, carried an authorization of
appropriations for FY1986 only, while the House version carried a 2-
year authorization of appropriations. In the conference report, the
committee explained, ``The Senate bill contained authorizations for
only fiscal year 1986, while the House amendment authorized funds for
both fiscal year 1986 and 1987. The executive branch requested such
sums as may be necessary for fiscal year 1987. The committee of
conference agreed to extend the fiscal year 1986 authorization to
fiscal year 1987, at the same levels. The Committees on Foreign Affairs
of the House and Foreign Relations of the Senate will give full
consideration to any additional recommendations by the executive branch
for fiscal year 1987 [H. Rept. 99-237, p. 108].''
\83\ This provision was added during the Senate Foreign Relations
Committee markup of the foreign relations reauthorization (S. Rept. 99-
304, p. 25) and was enacted into law unchanged (P.L. 99-399).
---------------------------------------------------------------------------
There appear to be a number of factors that could account
for these significant changes in practice. First, with the
Peace Corps reorganization at the beginning of the decade, the
focus of each reauthorization increasingly addressed agency
policy concerns, and the practice of enacting laws that only
authorized appropriations was generally discontinued. Second,
the change in the vehicle to a multiagency foreign aid
authorization may have also affected the frequency of the
authorization, both because the foreign aid authorizations
tended to authorize multiyear appropriations for other
programs, and the potential for delays due to policy disputes
unrelated to the Peace Corps. Finally, both the late enactment
of the authorizations compared to appropriations, and the gaps
in the authorization of appropriations, may have also further
undermined the role of provisions explicitly authorizing
appropriations in influencing budgetary decisionmaking.
Over the past 25 years, efforts to reauthorize the Peace
Corps have occurred on an irregular basis. Moreover, these
authorization measures have often been primarily directed at
policy concerns with the agency, as opposed to reauthorizing
appropriations. For FY1993, a stand-alone law (P.L. 102-565)
was enacted that both reauthorized appropriations and
established the Peace Corps foreign exchange fluctuations
account. This law had been enacted about 1 month after the
Peace Corps appropriations for that fiscal year; the amounts
authorized and appropriated were identical. About 18 months
later, provisions were carried in the FY1995/FY1996 Foreign
Relations Authorization Act that provided a 2-year
authorization of appropriations for the Peace Corps, along with
minor technical changes to the program (P.L. 103-236). The most
recent authorization of appropriations enacted for the Peace
Corps covered 4 fiscal years, FY2000-FY2003 (P.L. 106-30), but
the primary purpose of this law was to authorize the expansion
of the Peace Corps beyond the goal of 10,000 volunteers and
make technical updates. Since that time, legislation that would
reauthorize appropriations for the Peace Corps has received
little congressional action.\84\ The most recent law to make
major program changes to the Peace Corps, involving volunteer
safety, included no provisions authorizing appropriations (P.L.
112-57).\85\
---------------------------------------------------------------------------
\84\ See, for example, S. 12 (107th Cong.), S. 1426 (112th Cong.),
and H.R. 2583 (112th Cong.).
\85\ For a discussion of these issues, see CRS Report RS21168, The
Peace Corps: Current Issues, by Curt Tarnoff.
---------------------------------------------------------------------------
Conclusion
The evolution in the form of authorizations during the 20th
century allowed the legislative committees to not only address
policy questions but also to exercise a greater role in
congressional and agency funding decisions. While these
committees have a number of tools at their disposal with which
to exercise this influence, one such tool that was chosen and
developed during this period was the use of explicit
authorizations of appropriations. As the needs of these
committees and Congress have changed over time, the extent to
which this tool has been used has also shifted.
The legislative committees' desire for increased
involvement in both agency and congressional budgetary
decisions was a significant factor in the adoption of periodic
reauthorization schedules, and played a role in the
authorizations for all three agencies in this study. The Peace
Corps and NASA received annual authorization schedules soon
after being created as a means to facilitate congressional
oversight during this critical time in the agency's
development. While the transition to an annual reauthorization
for the NSF occurred many years after the agency's
establishment, it too was motivated by oversight concerns that
had developed in the interim. For all three agencies, annual
authorizations also had the advantage of allowing the
legislative committees to formally weigh in on the agency's
budgetary needs each fiscal year through the legislative
process.
During the period prior to the 1980s, the annual
authorizations for the NSF, NASA, and Peace Corps were all
characterized by relatively incremental program changes, with
the more significant alterations generally being made outside
the annual reauthorization process. As the NSF and NASA
transitioned to a more long-term reauthorization schedule over
the past 30 years, their reauthorization laws have become more
policy-focused and contain more instances of significant
program changes. This transition in the focus of
reauthorizations was even more pronounced for the Peace Corps,
with reauthorizations during the past few decades being enacted
intermittently, and recent legislative proposals to make
significant program changes containing no explicit
authorizations of appropriations.
In general, the evolution of authorizations in recent years
has moved away from annual reauthorizations to longer periods.
This has allowed Congress to address some criticisms about the
impact of lapsed authorizations and focus instead on policy
issues. This evolution parallels larger institutional patterns
of change and innovation and the development of institutional
capacity. In general, the choice of certain institutional tools
over others may be driven both by the requirements of a
particular context, as well as a need to serve broader
purposes.\86\ The extent to which the separation between the
authorization and appropriations processes continues to be a
feature of congressional rules and practices, and the balance
that results from the tension this separation creates will
likely shift again and lead to further procedural adaptations.
---------------------------------------------------------------------------
\86\ Eric Schickler, Disjointed Pluralism (Princeton, NJ: Princeton
University Press, 2001), pp. 15-18.
Congress Evolving in the Face of Complexity: Legislative Efforts to
Embed Transparency, Participation, and Representation in Agency
Operations
Clinton T. Brass
Specialist in Government Organization and Management
and
Wendy Ginsberg
Analyst in American National Government
----------
In the last 100 years, the evolving scope and
increasing complexity of the Federal Government have
prompted concerns about how Congress could continue to
fulfill its constitutional duties. In response to real
and perceived pressures, Congress passed measures that
embedded values of transparency, participation, and
representation into agencies' day-to-day activities. In
combination with the advent of inexpensive
communications technologies, the laws have changed how
Congress, agencies, and non-Federal stakeholders may
engage one another. This evolution has implications for
the lawmaking, oversight, and representational work of
Congress--ranging from workload pressures to power
relationships with the President.
Introduction
On December 10, 1934, an Assistant Attorney General (AG) of
the Department of Justice appeared before the Supreme Court. He
was defending the constitutionality of several parts of the
National Industrial Recovery Act (NIRA), a key component of
President Franklin D. Roosevelt's New Deal.\1\ On that day of
oral argument, however, the Justices intensely questioned the
Assistant AG on a matter outside of the case's constitutional
core. They pressed him about a particular regulatory provision
that was related to the implementation of NIRA. Unbeknownst to
many inside and outside the government, the provision had been
inadvertently omitted when a revised version of the regulation
was sent to the printer. Consequently, the government had been
seeking to enforce a regulatory provision that did not exist.
Justice Louis D. Brandeis pressed the Assistant AG, pointedly
asking if there was any way for a person to find the contents
of a regulation when it was issued. ``I think it would be
rather difficult,'' the Assistant AG said.\2\
---------------------------------------------------------------------------
\1\ For discussion of the proceedings, see U.S. National Archives
and Records Administration (hereinafter NARA), Office of the Federal
Register, ``A Brief History Commemorating the 70th Anniversary of the
Publication of the First Issue of the Federal Register,'' 2006, p. 2,
at http://www.archives.gov/federal-register/the-federal-register/
history.pdf; and Lotte E. Feinberg, ``Mr. Justice Brandeis and the
Creation of the Federal Register,'' in Transparency and Secrecy, ed.
Suzanne J. Piotrowski (Lanham, MD: Lexington Books, 2010), pp. 76-90.
\2\ Lotte E. Feinberg, ``Mr. Justice Brandeis and the Creation of
the Federal Register,'' p. 77.
---------------------------------------------------------------------------
The embarrassing incident demonstrated to many observers an
increasing need for the public--and Federal agencies
themselves--to have a formal system for tracking agency actions
and rules.\3\ It was a catalyst for the enactment of the
Federal Register Act and the creation of the Federal Register,
the ``daily newspaper of the Federal government.'' \4\ The
publication provides information on and access to Federal
agency regulations, proposed regulations and public notices,
Executive orders, proclamations, and other documents. In
combination with several statutory requirements, the Federal
Register allows Congress and the public to track certain
executive branch actions and policy choices and participate
formally in the regulatory process.
---------------------------------------------------------------------------
\3\ Harold C. Relyea, ``The Federal Register: Origins, Formulation,
Realization, and Heritage,'' Government Information Quarterly, vol. 28,
no. 3 (July 2011), pp. 295-302.
\4\ 49 Stat. 500 (1935). For the quoted text, see NARA, ``Federal
Register: About the Federal Register,'' at http://www.archives.gov/
federal-register/the-federal-register/about.html.
---------------------------------------------------------------------------
The story of the Federal Register Act exemplifies a broader
theme of how Congress has adapted agencies' structures and
operations over time. As multiple examples show, Congress has
passed many laws that embed values of transparency,
participation, and representation into agency activities.
Congress passed these measures as one strategy, among others,
to help address the increasing size, scope, and complexity of
the Federal Government. This strategy, particularly when
combined with the advent of inexpensive communications and
information technologies, has substantially changed how
Congress, agencies, and non-Federal stakeholders (e.g.,
advocacy groups, businesses, State and local governments, and
citizens) may engage one another during the course of agencies'
day-to-day operations. In turn, these changes in interactions
have implications for the lawmaking, oversight, and
representational work of Members of Congress.
This report proceeds in three parts. First, the report
provides historical context, including discussion of several
strategies that Congress employed in the last century to adapt
to the increasing complexity of government activities. Next,
the report focuses in more depth on one of these strategies,
under which Congress passed measures to embed transparency,
participation, and representation into the day-to-day
operations of agencies--albeit with some important
constraints.\5\ Through these laws, Congress also sought to
enhance its capacity by enlisting public participation in
oversight and policymaking processes. Finally, building on this
foundation, the report highlights potential implications of
increased engagement by non-Federal stakeholders. In this
context, the report also identifies several tradeoffs that
Members face in their representational, oversight, and
lawmaking work.
---------------------------------------------------------------------------
\5\ For example, laws such as the Privacy Act and Budget and
Accounting Act channel how information may be developed, used, shared,
and withheld from release, as discussed later in the report.
---------------------------------------------------------------------------
Historical Context: Congress Adapts to Evolving Expectations and
Demands
Beginning with the Constitution
By design, elections are not the only time when members of
the public may interact formally with their elected
representatives. Rather, the Framers of the Constitution
perceived a need to protect the right of the American people to
``petition the Government for a redress of grievances.'' \6\ In
other words, the Constitution foresees the involvement of non-
Federal stakeholders in myriad policy deliberations, where they
may attempt to influence decisionmaking in both the legislative
and executive branches. Yet it has taken time and experience
for Congress to evaluate how to put the Constitution into
governing practice to facilitate involvement of these
stakeholders in day-to-day policy deliberations, such as
through the enactment of statutes and the pursuit of other
congressional activities, including oversight.\7\
---------------------------------------------------------------------------
\6\ U.S. Constitution, Amendment I.
\7\ With regard to oversight, many tools, including hearings and
investigative reports, may be employed with a significant public role
in mind. See CRS Report RL30240, Congressional Oversight Manual, by
Todd Garvey et al.
---------------------------------------------------------------------------
From the inception of the Federal Government, Congress has
taken steps to require agencies to make certain information and
records available to Congress and the public.\8\ As the
responsibilities of the Federal Government evolved over time,
so have the perceived needs of Congress, agencies, and
interested non-Federal stakeholders. It could be argued,
however, that a turning point arrived gradually with the
approach of the 20th century.
---------------------------------------------------------------------------
\8\ For discussion of reporting requirements, including what may be
the first reporting requirement passed in 1789 by the First Congress,
see CRS Report R42490, Reexamination of Agency Reporting Requirements:
Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by
Clinton T. Brass.
---------------------------------------------------------------------------
Increasing Challenges of Complexity
A century after the Constitution's ratification, the United
States faced mounting challenges. The Nation's geographic reach
had expanded across the North American continent. The United
States also experienced rapid population growth, driven in part
by extensive immigration.\9\ Furthermore, numerous developments
in the 19th and 20th centuries prompted the voting public and
policymakers to support efforts--in fits and starts, and
sometimes following considerable opposition--to expand the
Federal Government's duties. These developments included, among
other things, industrialization, urbanization, efforts to
combat the Great Depression, two world wars, and the increasing
complexity of domestic issues.\10\ As a result, the scope of
the Federal Government's activities increased substantially to
confront these and other challenges.
---------------------------------------------------------------------------
\9\ The population of the United States doubled between 1850 and
1880, from 23 million to 50 million people, and doubled again between
1880 and 1920, rising to 106 million. U.S. Department of Commerce,
Bureau of the Census, ``History: Fast Facts,'' at http://
www.census.gov/ history/www/through_the_decades/fast_facts/.
\10\ For discussion, see Stephen Skowronek, Building a New American
State: The Expansion of National Administrative Capacities, 1877-1920
(Cambridge, United Kingdom: Cambridge University Press, 1982); and CRS
Report RL30808, Government at the Dawn of the 21st Century: A Status
Report, by Harold C. Relyea.
---------------------------------------------------------------------------
The Federal Government's increasing duties and size
presented challenges and opportunities for agencies, Congress,
and the public--including questions about how government as a
whole could cope with increasing complexity. Congress responded
to this challenge initially with efforts to build
administrative capacity within the executive branch--such as
creating new agencies, assigning additional responsibilities to
existing agencies, or establishing agency procedures.\11\ Over
time, however, the increased size, complexity, and reliance
upon capacity in the executive branch generated new
challenges.\12\ Among other things, these challenges raised
questions about how Congress could inform itself and fulfill
its multiple constitutional responsibilities--representing the
people, conducting oversight, making laws, etc.--in a rapidly
evolving environment. In one scholar's view:
---------------------------------------------------------------------------
\11\ For examples, see discussion in Skowronek, Building a New
American State.
\12\ For discussion, see ibid., pp. 290-292; Peri E. Arnold, Making
the Managerial Presidency: Comprehensive Reorganization Planning, 1905-
1996, 2d ed. (Lawrence, KS: University Press of Kansas, 1998), pp. 81-
117; and David H. Rosenbloom, Building a Legislative-Centered Public
Administration: Congress and the Administrative State, 1946-1999
(Tuscaloosa, AL: University of Alabama Press, 2000).
By 1946, Congress's traditional place in the constitutional
separation of powers had been thoroughly upset by the vast
growth in the size and power of the federal bureaucracy during
the New Deal and World War II. Congress had become a delegator,
vesting much of its legislative authority in administrative
agencies, and a great deal of the initiative for policy making
and budgeting had passed to the executive branch.\13\
---------------------------------------------------------------------------
\13\ Rosenbloom, Building a Legislative-Centered Public
Administration, p. 1.
Furthermore, some observers expressed concerns about the
public's role in this new environment, including the public's
ability to access information and inform policymaking
processes.\14\ On one hand, many observers perceived agencies
and civil servants as needing flexibility and effective tools
to address complex and changing policy problems. Yet many also
worried about Congress and non-Federal stakeholders having
adequate transparency into, and influence over, the activities
and decisionmaking of agencies. Observers saw non-Federal
stakeholders as having little recourse to affect policy and
hold government accountable when agencies wielded considerable
discretion under existing laws.
---------------------------------------------------------------------------
\14\ For an illustration of these concerns in the legislative
history of the Administrative Procedure Act (60 Stat. 237 (1946)), see
George B. Shepherd, ``Fierce Compromise: The Administrative Procedure
Act Emerges from New Deal Politics,'' Northwestern University Law
Review, vol. 90, no. 4 (1996), pp. 1557-1683.
---------------------------------------------------------------------------
Strategies in Response
In the last 100 years, Congress responded to these
concerns. Congress adapted to increasing size, scope, and
complexity in the executive branch by passing laws that used at
least three general strategies:
shifting workload to the executive and judicial branches,
while seeking to maintain stewardship of policy through the
design of relevant statutes and institutions; \15\
---------------------------------------------------------------------------
\15\ For example, laws that shifted some workload to other branches
include the Budget and Accounting Act (42 Stat. 20 (1921)), as
discussed later in this report, and the Federal Tort Claims Act (60
Stat. 842 (1946), Title IV of the Legislative Reorganization Act of
1946). Until the Federal Tort Claims Act was enacted, a person who
suffered personal injury or property damage as the result of a Federal
employee's negligence or misconduct had no judicial remedy. Such a
person's only remedy was to seek to have a private claim bill
introduced in Congress. See CRS Report RL30795, General Management
Laws: A Compendium, by Clinton T. Brass et al., section titled
``Federal Tort Claims Act,'' by Henry Cohen. As Congress delegated
authorities to agencies in the face of complexity, Congress also sought
to structure many agencies to promote their independence from undesired
influence. For example, see CRS Report R43391, Independence of Federal
Financial Regulators, by Henry B. Hogue, Marc Labonte, and Baird Webel.
---------------------------------------------------------------------------
building capacity in the legislative branch, such as through
hiring staff and establishing support agencies; \16\ and
---------------------------------------------------------------------------
\16\ For example, a key law that built capacity in the legislative
branch was the Legislative Reorganization Act of 1946 (60 Stat. 812),
which, among other things, for the first time authorized permanent
professional and clerical staff for congressional committees. Congress
also established the Legislative Reference Service in 1914 (later
redesignated as the Congressional Research Service with an expanded
policy analysis role), the General Accounting Office in 1921 (later
given new responsibilities and eventually redesignated as the
Government Accountability Office), and the Congressional Budget Office
in 1974.
---------------------------------------------------------------------------
embedding legislative values of transparency, participation,
and representation into the day-to-day operations of Federal
agencies.\17\
---------------------------------------------------------------------------
\17\ For a book-length account of all three strategies, especially
from the perspective of the Legislative Reorganization Act of 1946 and
the Administrative Procedure Act, see Rosenbloom, Building a
Legislative-Centered Public Administration.
---------------------------------------------------------------------------
Employing these strategies, Congress established numerous
statutory mechanisms to help address complexity in governance.
These included laws that cover executive agencies broadly and
bring some regularity to their operations.\18\ Some of the laws
drew on Congress' initial approach of building capacity in the
executive branch. Many of the laws also employed one or more of
the additional three strategies to help Congress grapple with
challenges of an increasing workload, difficulty in accessing
information, and maintaining control of agencies. In all of
these efforts, Congress navigated through an environment of
potential cooperation or competition with the President over
policy outcomes.\19\ These concerns continued through the
balance of the 20th century and beyond, even after Federal
revenues and spending stabilized as a proportion of the economy
in the decades after 1950.\20\
---------------------------------------------------------------------------
\18\ For a survey, see CRS Report RL30795, General Management Laws:
A Compendium, by Clinton T. Brass et al. Most subsequently were
amended, and some were later codified in the U.S. Code.
\19\ For related discussion, see CRS Report RL32388, General
Management Laws: Major Themes and Management Policy Options, by Clinton
T. Brass.
\20\ For a table that shows how Federal receipts and outlays have
varied as a proportion of gross domestic product from 1930 to the
present, see U.S. Executive Office of the President, Office of
Management and Budget (hereinafter OMB), Historical Tables--Budget of
the U.S. Government, FY2015 (Washington, DC: GPO, 2014), pp. 26-27.
Some observers view these proportions as proxy measures of the size of
the Federal Government.
---------------------------------------------------------------------------
In particular, the third strategy of passing laws to embed
transparency, participation, and representation into agency
operations--the primary focus of this report--has, in
combination with technological developments, substantially
changed how Congress, agencies, and non-Federal stakeholders
engage one another. Under these laws, which were enacted over a
period of decades, non-Federal stakeholders increasingly could
inform themselves and seize opportunities to communicate with
their government. Furthermore, Congress could rely to some
extent on non-Federal stakeholders to raise flags if government
institutions misbehaved in exercising the discretion they were
granted under law. These new points of access set up a dynamic
where, in the views of two scholars, it was indeed possible
that:
the bureaucracy might not pursue Congress's goals. But
citizens and interest groups can be counted on to sound an
alarm in most cases in which the bureaucracy has arguably
violated Congress's goals. Then Congress can intervene to
rectify the violation. Congress has not necessarily
relinquished legislative responsibility to anyone else. It has
just found a more efficient way to legislate.\21\
---------------------------------------------------------------------------
\21\ Mathew D. McCubbins and Thomas Schwartz, ``Congressional
Oversight Overlooked: Police Patrols versus Fire Alarms,'' American
Journal of Political Science, vol. 28, no. 1 (February 1984), p. 175.
In addition, as communication and information technologies
transformed over time from the telegraph to email, technologies
have also become less costly, more capable, and more pervasive.
It has become easier for non-Federal stakeholders to use
the avenues provided by these laws to inform themselves,
organize, and engage with agencies and Members of Congress. For
example, stakeholders may scrutinize publicly available reports
from agencies and comment on proposed regulations; non-Federal
policy experts may serve on agencies' advisory committees; and
anyone may request certain Federal records without justifying
the need for the request. Large databases also have been placed
on the Internet for perusal by organized interests and everyday
citizens. The next section of this report highlights several
laws that illustrate this trend.\22\
---------------------------------------------------------------------------
\22\ The discussions of the first two laws, below, are lengthier
than the others, because they help illustrate how the strategy of
embedding legislative values into agency operations could be pursued
simultaneously with other strategies (e.g., the Budget and Accounting
Act of 1921, which both shed congressional workload and established
capacity in the legislative and executive branches) or pursued in
response to previous lawmaking (e.g., the Federal Register Act,
responding to previous delegations of rulemaking authority to
agencies).
---------------------------------------------------------------------------
Examples of Laws That Embedded Transparency, Participation, and
Representation
The laws described below illustrate how Congress sought to
embed transparency, participation, and representation into the
operations of executive agencies. This list draws on previous
CRS research and is not exhaustive of all possible
examples.\23\
---------------------------------------------------------------------------
\23\ Many of the laws also are discussed in Rosenbloom, Building a
Legislative-Centered Public Administration.
---------------------------------------------------------------------------
Budget and Accounting Act of 1921 \24\
---------------------------------------------------------------------------
\24\ 42 Stat. 20, later amended and codified in Title 31, U.S.
Code. This paragraph draws in part on CRS Report RL30795, General
Management Laws: A Compendium, by Clinton T. Brass et al., section
titled ``Budget and Accounting Act of 1921,'' by James Saturno.
---------------------------------------------------------------------------
An early milestone of Congress' efforts to embed
transparency into agency operations arguably was enactment of
the Budget and Accounting Act of 1921, which, among other
things, centralized some aspects of budget formulation with the
President. Notably, the law grew in part out of Progressive Era
views that sought to place more trust and authority in
administrative processes and institutions. In addition, the
machinery of the Federal Government had been heavily strained
during World War I (1914-1918), when Federal spending increased
markedly.\25\ At that time, Congress did not have extensive
staff resources and support agencies to help it cope with these
heightened demands.
---------------------------------------------------------------------------
\25\ Allen Schick, The Federal Budget: Politics, Policy, Process,
3d ed. (Washington, DC: The Brookings Institution, 2007), p. 14.
---------------------------------------------------------------------------
In response, Congress focused on building institutions and
processes in the executive branch. Notably, Congress
accompanied this approach with parallel efforts to shift some
workload to the executive branch, build capacity in the
legislative branch, and increase the transparency of government
finances. Congressional proponents of the law argued in favor
of a process where the President would receive, consider, and
modify executive agency budget requests (``estimates''), and
then submit a consolidated budget proposal to Congress.\26\
Individual agencies would no longer be allowed to send budget
requests directly to Congress unless the House or Senate asked
for such a request. Proponents argued that ``the estimates for
appropriations will come to Congress after a more mature
deliberation by an official who has the power to coordinate and
consolidate governmental activities and to revise the
estimates.'' \27\ In the face of what today might be called
information overload, proponents added that ``[t]he proposed
plan . . . will unquestionably greatly reduce the drudgery of
committees in making inquiry into [agencies' budget]
estimates.'' \28\ In response to criticisms that such a change
would abdicate legislative prerogatives or shift power to the
President, proponents asserted that ``the proposed law does not
change in the slightest degree the duty of Congress to make the
minutest examination of the budget.'' \29\ To support Congress
in undertaking this duty, the law established numerous
reporting requirements that provided budget transparency for a
broader public audience. The law also established a new agency
in the legislative branch--the General Accounting Office (GAO),
now the Government Accountability Office--to assist Congress in
focusing on accountability.\30\
---------------------------------------------------------------------------
\26\ The act established the Bureau of the Budget in the Treasury
Department to assist the President with this work. The bureau later was
transferred to the Executive Office of the President and eventually was
designated the Office of Management and Budget. See CRS Report RS21665,
Office of Management and Budget (OMB): A Brief Overview, by Clinton T.
Brass.
\27\ U.S. Congress, House Select Committee on the Budget, National
Budget System, report to accompany H.R. 9783, 66th Cong., 1st sess., H.
Rept. 362 (Washington, DC: GPO, October 8, 1919), p. 7.
\28\ Ibid.
\29\ Proponents also claimed: ``The bill does not in the slightest
degree give the Executive any greater power than he now has over the
consideration of appropriations by Congress.'' Ibid. Nevertheless, most
scholarship has concluded that the law gave the President more power
over the appropriations process than before, in part through increased
control of information coming from agencies. For example, see Kenneth
R. Mayer and Thomas J. Weko, ``The Institutionalization of Power,'' in
Robert Y. Shapiro, Martha Joynt Kumar, and Lawrence R. Jacobs, eds.,
Presidential Power: Forging the Presidency for the Twenty-First Century
(New York: Columbia University Press, 2000), pp. 193-198.
\30\ Concerns about Congress' access to information from executive
agencies eventually prompted Congress to increase its own capacity to
scrutinize the President's proposals. See George B. Galloway, ``The
Operation of the Legislative Reorganization Act of 1946,'' American
Political Science Review, vol. 45, no. 1 (March 1951), pp. 64-65.
---------------------------------------------------------------------------
Federal Register Act \31\
---------------------------------------------------------------------------
\31\ Originally enacted in 1935 (49 Stat. 500); codified at 44
U.S.C. Chapter 15. This section draws in part on CRS Report RL32240,
The Federal Rulemaking Process: An Overview, coordinated by Maeve P.
Carey.
---------------------------------------------------------------------------
A notable accelerant to Congress' efforts to embed
legislative values in agency operations arrived a decade later
with the Franklin D. Roosevelt administration, as the
administration and Congress responded to major crises of the
time, including the Great Depression.\32\ The President's New
Deal program responded energetically. Among other things,
President Roosevelt's ``legislative triumphs in the famous
Hundred Days of 1933 laid the groundwork for an explosion of
administrative law in addition to the tidal wave of such
pronouncements he generated from the White House and the
existing regulatory agencies.'' \33\ These developments led to
enactment of the Federal Register Act, which in 1935 became one
in a succession of prominent laws that, in turn, shone a light
on administrative bureaucracies and their activities.
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\32\ After the First World War, expansion of the Federal Government
slowed, and then increased again during the Great Depression to
``combat the national economic emergency.'' See CRS Report RL30808,
Government at the Dawn of the 21st Century: A Status Report, by Harold
C. Relyea. In the Great Depression, real gross domestic product plunged
by 30 percent, and unemployment reached 25 percent. See CRS Report
R41332, Economic Recovery: Sustaining U.S. Economic Growth in a Post-
Crisis Economy, by Craig K. Elwell.
\33\ Relyea, ``The Federal Register: Origins, Formulation,
Realization, and Heritage,'' p. 297.
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The Federal Register Act established a uniform system for
handling agency regulations by requiring (1) the filing of
documents with the Office of the Federal Register; (2) the
placement of documents for public inspection; (3) publication
of the documents in a new government periodical, the Federal
Register; and (4) after a 1937 amendment, permanent
codification of regulations in the Code of Federal Regulations
(CFR).\34\ Publication of a regulation in the Federal Register
provides official notice of its existence and contents. Other
documents that are published in the Federal Register include
presidential proclamations and Executive orders, notices, and
any documents that the President or Congress requires to be
published. The Federal Register is published each business day,
and is available electronically.\35\ In these ways, the
publication provides a mechanism by which citizens, businesses,
and other non-Federal stakeholders can track the activities of
Federal agencies that may affect them. The regulatory process
that plays out in the Federal Register provides Congress an
opportunity to oversee implementation of the laws it enacts,
and the Federal Register furthermore provides a common source
of information that fosters interaction among agencies,
Congress, and non-Federal stakeholders.
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\34\ For access to the CFR, see U.S. Government Printing Office
(GPO), Code of Federal Regulations (Annual Edition), at http://
www.gpo.gov/fdsys/browse/collectionCfr.action?collection Code=CFR.
\35\ GPO, Federal Register, at http://www.gpo.gov/fdsys/browse/
collection.action?collectionCode= FR.
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Administrative Procedure Act (APA) \36\
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\36\ Originally enacted in 1946 (P.L. 79-404; 60 Stat. 237);
codified at 5 U.S.C. 551 et seq. This paragraph draws in part on CRS
Report RL30795, General Management Laws: A Compendium, by Clinton T.
Brass et al., section titled ``Administrative Procedure Act,'' by
Morton Rosenberg and T.J. Halstead.
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The Administrative Procedure Act (APA) became law in 1946,
after what one scholar called the ``bitter compromise of [a]
fierce political battle'' over administrative reform in the
wake of the New Deal.\37\ The major contribution of the act was
to establish for the first time minimum procedural requirements
for certain types of agency decisionmaking. Its general
purposes were to (1) require agencies to keep the public
currently informed of agency organization, procedures, and
rules; (2) provide for public participation in the rulemaking
process; (3) prescribe uniform standards for the conduct of
formal rulemaking and adjudicatory proceedings; and (4) restate
the law of judicial review of agency action. A series of
subsequent judicial decisions and statutes expanded both the
obligations of agencies and the role of reviewing courts. The
result has been the transformation of ``informal'' rulemaking--
also known as ``notice and comment'' rulemaking--into an on-
the-record proceeding that has fostered widespread public
participation.\38\ With some frequency, Congress has supplanted
the APA's executive branch-wide requirements with more explicit
directives for particular agencies and programs. This kind of
legislation often has been aimed at formalizing procedural
protections to promote public participation in certain agency
policymaking.
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\37\ Shepherd, ``Fierce Compromise: The Administrative Procedure
Act Emerges from New Deal Politics,'' p. 1681. The scholar added that
``[t]he APA was an important and clear example of an attempt to
influence [policy] outcomes by means of procedural requirements.''
\38\ For discussion of the present-day rulemaking process, see CRS
Report RL32240, The Federal Rulemaking Process: An Overview,
coordinated by Maeve P. Carey. In a typical case of informal
rulemaking, when an agency publishes a proposed rule, it also solicits
comments from the public. The agency then considers the comments,
develops a final rule, and publishes both the agency's response to the
comments and the final rule in the Federal Register.
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Freedom of Information Act (FOIA) \39\
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\39\ Originally enacted in 1966 (P.L. 89-487; 80 Stat. 250);
codified at 5 U.S.C. 552. For more information about the law, see CRS
Report R41933, The Freedom of Information Act (FOIA): Background,
Legislation, and Policy Issues, by Wendy Ginsberg.
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In 1966, Congress passed the Freedom of Information Act
(FOIA). The legislation was considered in Congress in the face
of considerable opposition by executive departments and
agencies.\40\ FOIA enables any person to request, without
explanation or justification, access to existing, identifiable,
and unpublished executive branch agency records. The law, which
contains provisions that acknowledge legitimate reasons for
government secrecy and information protection, specifies nine
categories of information that may be exempted from the rule of
disclosure. Disputes over the accessibility of requested
records may be settled, according to the provisions of the act,
in Federal court, or may be mediated in the Office of
Government Information Services (OGIS).
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\40\ For discussion of the impact of this opposition on the law's
early implementation, see CRS Report RL30795, General Management Laws:
A Compendium, by Clinton T. Brass et al., section titled ``Freedom of
Information Act,'' by Harold C. Relyea.
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Federal Advisory Committee Act (FACA) \41\
---------------------------------------------------------------------------
\41\ Originally enacted in 1972 (P.L. 92-463; 86 Stat. 770);
located at 5 U.S.C. Appendix.
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Congress passed the Federal Advisory Committee Act (FACA)
in 1972, prompted by a concern by many citizens and Members of
Congress that existing executive branch advisory bodies were
duplicative, inefficient, and lacked adequate oversight; did
not adequately represent the public interest; and too often
held meetings that were closed to the public.\42\ FACA provides
a formal process by which non-Federal stakeholders or policy
experts can provide advice and opinions to the Federal
Government. FACA requires that an advisory committee's
membership be ``fairly balanced in terms of the points of view
represented,'' and that the advice provided by committees be
objective and accessible to the public. Additionally, FACA
requires that committee meetings be open to the public, unless
the material discussed meets certain requirements.
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\42\ See, for example, U.S. Congress, Senate Committee on
Government Operations, The Federal Advisory Committee Act, report to
accompany S. 3529, 92d Cong., 2nd sess., S. Rept. 92-1098 (Washington,
DC: GPO, 1972), pp. 5-6.
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Privacy Act \43\
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\43\ Originally enacted in 1974 (P.L. 93-579; 88 Stat. 1896);
codified at 5 U.S.C. 552a.
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Legislated in 1974, the Privacy Act arose in the context of
several contemporaneous events that prompted congressional
interest in securing personal privacy. The law provides U.S.
citizens or permanent resident aliens presumptive access to
personally identifiable files on themselves held by Federal
agencies--generally excepting law enforcement and intelligence
entities. The statute specifies seven types of information that
may be exempted from the rule of access. Where a file subject
contends that a record contains inaccurate information about
that individual, the act allows correction through a request to
the agency that possesses the record. Disputes over the
accessibility or accuracy of personally identifiable files may
be pursued in Federal court.
Government in the Sunshine Act \44\
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\44\ Originally enacted in 1976 (P.L. 94-409; 90 Stat. 1241);
codified at 5 U.S.C. 552b.
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Enacted in 1976, the government in the Sunshine Act was
intended to open the policymaking deliberations of any agency
headed by a ``collegial body''--such as boards, commissions, or
councils--to public scrutiny. One scholar characterized the law
as ``premised on the concept that the multi-headed regulatory
agencies are very much legislative extensions, or subordinate
arms of the Congress,'' citing the congressional debate when
FACA was considered.\45\ Pursuant to the statute, agencies are
required to publish advance notice of impending meetings and
make those meetings publicly accessible. The act includes 10
conditions under which agency meetings are to be exempted from
the act. Disputes over proper public notice of such meetings or
the propriety of closing a deliberation may be pursued in
Federal court.
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\45\ Rosenbloom, Building a Legislative-Centered Public
Administration, p. 51 (internal quotation marks omitted).
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Statutory Exceptions to the Budget and Accounting Act of 1921
As discussed earlier, the Budget and Accounting Act of 1921
took steps toward increasing transparency. The law also
established a process that many observers later perceived as
enabling the President in practice to control the nature of
information that agencies release to Congress and the
public.\46\ In response, over a period of years, Congress
passed multiple exceptions to the act. These statutory
provisions authorized certain agencies to submit budget
requests or other information directly to Congress, without
modification by the President or the Office of Management and
Budget (OMB).\47\ The statutory provisions vary considerably
and cover agencies such as the Consumer Product Safety
Commission, Federal Election Commission, and Social Security
Administration. In some cases, the President statutorily is
required to include the agency's request in the President's
budget proposal without revision. Alternatively, an agency may
be required to submit its budget request to Congress
concurrently when it submits a request to the President or
OMB.\48\ In most of these cases, agencies effectively may
bypass OMB and the President, communicating their views
directly to Congress as well as to the broader public rather
than only though the filter of the President's policy
preferences, thereby, arguably, opening part of the budget
formulation process to additional transparency.
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\46\ For example, see the dialog between Senator Edmund S. Muskie
and then-Office of Management and Budget (OMB) Director Roy L. Ash in
U.S. Congress, Senate Committee on Government Operations, Amending the
Budget and Accounting Act of 1921, hearing on S. 1214, 93d Cong., 1st
sess., April 27, 1973 (Washington, DC: GPO, 1973), pp. 30-34, in which
the Senator cited cases of OMB and agencies withholding certain budget-
related information from congressional requesters and public view.
\47\ OMB assembled a list of such agencies in 2001 along with
relevant statutory citations. OMB's list includes agencies that submit
budget requests directly to Congress, even without explicit statutory
authorization. The document was released after a Freedom of Information
Act court case. For the OMB list, see Public Citizen, ``Public Citizen,
Inc. v. Office of Management and Budget (OMB),'' at http://
www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=379.
\48\ In that situation, the President may submit a separate request
to Congress later, as part of the President's consolidated proposal.
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Government Performance and Results Act of 1993 (GPRA) and GPRA
Modernization Act of 2010 (GPRAMA) \49\
---------------------------------------------------------------------------
\49\ GPRA, P.L. 103-62, 107 Stat. 285 (1993); and GPRAMA, P.L. 111-
352, 124 Stat. 3866 (2011). This section draws in part on CRS Report
R42379, Changes to the Government Performance and Results Act (GPRA):
Overview of the New Framework of Products and Processes, by Clinton T.
Brass.
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Enacted in 1993, the Government Performance and Results Act
(GPRA) arrived in the wake of the ``reinventing government''
movement and other influences. The law was regarded as a
watershed for the Federal Government. For the first time, most
executive agencies were statutorily required to articulate
mission statements, set goals, measure performance, and report
the information to Congress and the public.\50\ Agencies
submitted this information in three major products: (1)
multiyear strategic plans, which were required to be revised
with a minimum frequency of every 3 years, (2) annual plans to
accompany agency budget requests, and (3) retrospective annual
reports. The law also required agencies to consult with
Congress and non-Federal stakeholders when developing their
strategic plans. Congress significantly revised the law with
passage of the GPRA Modernization Act of 2010 (GPRAMA). Among
other things, GPRAMA required OMB to create a public Web site
to house performance information, which OMB established as
Performance.gov. GPRAMA also included more specific
requirements for agencies' consultations with Congress, but
reduced the required frequency of certain agency consultations
with non-Federal stakeholders.\51\
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\50\ GPRA stood in contrast with past efforts that Presidents
pursued on their own initiative using available authority. These
initiatives, however, were abandoned with changes in administration, or
due to a perception of unrealistic ambitions or a lack of congressional
buy-in.
\51\ When an agency develops or makes adjustments to its strategic
plan, the agency is required to consult with ``entities potentially
affected by or interested in such a plan.'' The reduction in required
frequency occurred due to GPRAMA realigning the process of updating
agency strategic plans to coincide with the first year of Presidential
terms, once every 4 years, instead of the more staggered term of every
3 years under GPRA.
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Federal Funding Accountability and Transparency Act (FFATA) and Digital
Accountability and Transparency Act (DATA Act) \52\
---------------------------------------------------------------------------
\52\ FFATA was originally enacted in 2006 (P.L. 109-282, 120 Stat.
1186) and subsequently amended, including in 2014 by the DATA Act (P.L.
113-101, 128 Stat. 1146). This section draws in part on CRS Report
RL33680, The Federal Funding Accountability and Transparency Act:
Background, Overview, and Implementation Issues, by Garrett Hatch.
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Congress passed the Federal Funding Accountability and
Transparency Act (FFATA) in 2006. According to the law's
supporters, FFATA was an attempt to reduce ``wasteful and
unnecessary spending,'' including spending on funds earmarked
for special projects.\53\ The legislation required OMB to
establish a publicly available, searchable Web site containing
information about Federal grants, contracts, and other forms of
assistance. OMB eventually established the Web site as
USAspending.gov. Using this database, supporters asserted, a
citizen or watchdog group would be able to determine how much
money was given to which organizations, and for what purposes.
The premise of the new law was that, by making the details of
Federal spending available to the public, government officials
would be less likely to fund projects that might be perceived
as wasteful. In addition, supporters suggested that the new
database would enable the public to become more involved in the
discussion of Federal spending priorities. In 2014, Congress
significantly amended FFATA with passage of the DATA Act. Among
other things, FFATA as amended requires the Secretary of the
Treasury and Director of OMB to establish governmentwide
financial data standards. In addition, the amended law requires
online reporting of extensive data on budget execution.
---------------------------------------------------------------------------
\53\ Ibid.
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American Recovery and Reinvestment Act (ARRA) \54\
---------------------------------------------------------------------------
\54\ P.L. 111-5, 123 Stat. 115 (2009). This section draws on CRS
Report R40572, General Oversight Provisions in the American Recovery
and Reinvestment Act of 2009 (ARRA): Requirements and Related Issues,
by Clinton T. Brass.
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In the wake of a rapidly deteriorating economic picture and
a recession that the Congressional Budget Office (CBO) called
the most severe since World War II, Congress passed the
American Recovery and Reinvestment Act (ARRA) in 2009. The law
was intended in substantial part to function as a fiscal
stimulus to the economy through discretionary spending,
mandatory spending, and revenue provisions.\55\ To mitigate the
risk of such a large and sudden infusion of funding being
managed imprudently, Congress included extensive oversight-
related provisions in the legislation. After markup of a draft
version of ARRA, the House Committee on Appropriations
characterized the legislation as providing ``unprecedented
accountability,'' saying ARRA's ``historic level of
transparency, oversight and accountability will help guarantee
taxpayer dollars are spent wisely and Americans can see results
for their investment.'' As enacted, ARRA required, among other
things, that a Web site be established to serve as a focal
point for many of the law's extensive reporting requirements.
The Web site was established as Recovery.gov.
---------------------------------------------------------------------------
\55\ CRS Report R40537, American Recovery and Reinvestment Act of
2009 (P.L. 111-5): Summary and Legislative History, by Clinton T. Brass
et al. CBO later estimated that the law would increase budget deficits
by about $830 billion over a 10-year period, thereby diminishing the
effects of the recession on economic output and unemployment. See U.S.
Congressional Budget Office (hereinafter CBO), Estimated Impact of the
American Recovery and Reinvestment Act on Employment and Economic
Output from October 2012 Through December 2012, February 2013, pp. 1
and 3, at http://www.cbo.gov/sites/default/files/cbofiles/attachments/
43945-ARRA.pdf.
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Potential Issues Relating to Increased Stakeholder Engagement
In response to the increasing complexity of governance,
Congress has pursued multiple strategies in its efforts to
fulfill its constitutional duties, as noted earlier in this
report. These strategies have included (1) shifting certain
work to other branches, under detailed statutory and
institutional frameworks, (2) building capacity in the
legislative branch, and (3) fostering more extensive engagement
between agencies and non-Federal stakeholders by embedding
legislative values into agency operations.\56\ The third
strategy--the primary emphasis of this report--may raise
ongoing issues for Congress, as Congress addresses its own
institutional needs and the perceived needs of diverse
stakeholders.\57\ At least three broad issues, discussed in the
sections below, may arise from increased stakeholder
engagement.\58\
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\56\ In practice, the strategy of embedding transparency,
participation, and representation in agency operations may be pursued
in combination with one or both of the first two strategies. When
several strategies are pursued, they may interact with each other. For
example, efforts to build capacity in the executive branch might be
accompanied by workload shedding (e.g., delegation of certain
rulemaking authority to an agency that is somewhat insulated from
Presidential influence), requirements for additional transparency or
public participation, and new roles or responsibilities for
institutions in the legislative branch, to facilitate Congress' work.
\57\ Complexity in governance may affect agencies, Congress, and
the President in their day-to-day duties. Complexity similarly may
affect non-Federal stakeholders as well, as shown in the events that
led to enactment of the Federal Register Act. Historically, Congress
has been concerned at times with the needs of each of these actors when
it considered legislation to make policy changes, establish
institutions, and specify how institutions are required to operate.
Establishment of the Consumer Financial Protection Bureau within the
Federal Reserve System is a recent example of how Congress has built
capacity to address a perception of the public's information needs. For
discussion of the agency's statutory purpose and structure, see CRS
Report R42572, The Consumer Financial Protection Bureau (CFPB): A Legal
Analysis, by David H. Carpenter.
\58\ As illustrated in the sections below, Congress and other
stakeholders may experience any of several dynamics. These include
facing ``information overload,'' building capacity to produce and
process information, and controlling the flow of information. One group
of scholars described information overload as ``[occurring] when the
amount of input to a system exceeds its processing capacity. . . .
Consequently, when information overload occurs, it is likely that a
reduction in decision quality will occur.'' See Cheri Speier, Joseph S.
Valacich, and Iris Vessey, ``The Influence of Task Interruption on
Individual Decision Making: An Information Overload Perspective,''
Decision Sciences, vol. 30, no. 2 (spring 1999), p. 338 (citations
omitted from quoted text).
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Efforts to Promote Stakeholder Engagement May Contribute to Information
Overload and Impose Costs
In the face of complexity in governance, Congress may pass
legislation to build capacity in the executive branch and, at
the same time, open up agency activities to public engagement.
As a result, Federal law provides non-Federal stakeholders many
opportunities to gain insight into detailed aspects of agency
operations, formally express views, receive responses from the
agencies, and bring outstanding concerns to Members of
Congress. Members, in turn, may engage agencies and
stakeholders when they undertake their legislative duties--
including representation, oversight, and lawmaking. These
interactions may bring benefits for Congress in terms of
dealing with information overload, conducting oversight, and
exercising influence over the ways in which agencies implement
policy.
At the same time, however, the interactions may produce
significant side effects, including a deluge of information and
additional workload. With the advent of inexpensive and
pervasive communications and information technologies, the
nature of engagement has changed substantially over the last
century. New technologies can assist in facilitating wide
dissemination of information and rapid communication,
potentially leaving Members of Congress in a maelstrom of
information and viewpoints. On one hand, information from and
engagement with stakeholders may assist Members in evaluating
policy options in their legislative work. On the other hand,
non-Federal stakeholder expectations for congressional
engagement also may present complex issues and tradeoffs for
Congress--especially when considering how Members can best use
finite time and staffing resources. For example, with increased
access to agency operations and data, members of the public may
increase the frequency with which they petition their
representatives. As Federal data sources proliferate in areas
such as Medicare, Federal grants, and budget execution, Members
and their staff may face corresponding increases in workload
pressures.\59\ Consequently, additional transparency and
participation may bring ``opportunity costs,'' where some
observers may believe that time and staff should be used in
other and perhaps more effective ways.
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\59\ For discussion of potential contemporary sources of this sort
of workload, see CRS Report IN10012, CMS Releases Medicare Physician
Data: Proceed with Caution, by Jim Hahn; and CRS Report IN10101,
Transparency in Grants Administration: Implementing Relevant Provisions
of the DATA Act, by Natalie Keegan.
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Still other tradeoffs may arise when the topic of costs is
considered. Building capacity within agencies to facilitate the
promotion of transparency, for example, may involve substantial
costs for information technology systems.\60\ In addition,
requirements for additional transparency, participation, or
representation may have nonfinancial costs. As noted in another
CRS report:
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\60\ For example, CBO estimated that a proposed version of the DATA
Act would cost $300 million over a 5-year period. See CBO, S. 994, DATA
Act, as Ordered Reported by the Senate Committee on Homeland Security
and Governmental Affairs on November 6, 2013, December 5, 2013, at
http://www.cbo.gov/publication/44933.
scrutiny that results from reporting may have side effects. If
an agency's reporting omits major aspects of an agency's or
program's mission, officials may face incentives to concentrate
on reported tasks and not others that are integral to
accomplishing the mission. Other potential consequences of
scrutiny might include delays in the completion of tasks,
increases in time that personnel spend responding to scrutiny
rather than performing regular duties, and reduced creativity
in addressing challenges.\61\
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\61\ CRS Report R42490, Reexamination of Agency Reporting
Requirements: Annual Process Under the GPRA Modernization Act of 2010
(GPRAMA), by Clinton T. Brass (footnotes omitted from quoted text).
---------------------------------------------------------------------------
Creating Capacity and Transparency May Have Implications for How
Information Is Controlled and Who Controls It
Congress has legislated in many ways to address its own
perceived and evolving needs. Congress also has legislated to
address its perception of the needs of agencies and the
President to cope with increasing complexity in governance. In
some cases, Congress initially established considerable
capacity in the executive branch, such as with the Budget and
Accounting Act of 1921 and additional laws during and after the
New Deal. Over time, however, many observers argued that
vesting more responsibilities in the executive branch as a
stand-alone strategy was not sufficient. Agencies and the
President, for example, could operate within somewhat of a
black box, with substantial control over the types and extent
of information they released. When this lack of transparency
became a concern, Congress responded with a variety of laws
like those described earlier in this report.
Nevertheless, congressional efforts to increase
transparency might facilitate simultaneous efforts to increase
or centralize Presidential power--as experience with the Budget
and Accounting Act (budget formulation) and the Administrative
Procedure Act (rulemaking) arguably demonstrate.\62\ In these
two cases, transparency could be used by the institutional
presidency (e.g., OMB) in attempts to control the actions of
agencies and to promote the President's policy agenda.
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\62\ For discussion of OMB's role on behalf of the President in
rulemaking, see CRS Report RL32397, Federal Rulemaking: The Role of the
Office of Information and Regulatory Affairs, coordinated by Maeve P.
Carey.
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Similar issues might arise in other contexts, as well. As
noted earlier in this report with respect to the GPRA
Modernization Act, for example, the new law realigned the
process of updating agency strategic plans to coincide with the
first year of Presidential terms, once every 4 years, instead
of once every 3 years under previous law (irrespective of when
a new President arrives).\63\ As a result, GPRAMA's new timing
framework reduces the required frequency of agencies'
consultations with non-Federal stakeholders and, furthermore,
appears to nest these consultations (and congressional
consultations) within the 1st year of a President's term.
During the first year of a Presidential term, Presidents
traditionally are focused on influencing agencies to adopt the
President's policy preferences. As a consequence, OMB's ability
to influence or direct the choices of agencies and the
information that they present may be enhanced in comparison
with previous law.\64\ The implications of GPRAMA's timing
change remain to be seen, including regarding agencies'
responsiveness to Congress and non-Federal stakeholders.
---------------------------------------------------------------------------
\63\ Continuing from previous law under GPRA, when an agency
develops or makes adjustments to its strategic plan, GPRAMA requires
the agency to consult with ``entities potentially affected by or
interested in such a plan.''
\64\ For discussion, see CRS Report R42379, Changes to the
Government Performance and Results Act (GPRA): Overview of the New
Framework of Products and Processes, by Clinton T. Brass.
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Transparency, Participation, and Representation, but for Whom?
When a person speaks about transparency, participation, and
representation, a key question may be asked: For whom? Recent
developments in the executive branch help to illustrate how
this question may raise issues for Congress in its multifaceted
work. To some extent, the congressional strategy of embedding
transparency, participation, and representation into the
operations of government has been embraced by the executive
branch. Recent government actions have adopted new technologies
that offer a more proactive form of access to executive branch
operations and policymaking. For example, in 2009, the Obama
administration unveiled its Open Government Directive, which
requires, among other things, that agencies release a variety
of datasets to the public.\65\
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\65\ For discussion of the directive, see CRS Report R42817,
Government Transparency and Secrecy: An Examination of Meaning and Its
Use in the Executive Branch, by Wendy Ginsberg et al. The directive
required agencies to place three ``high value'' datasets on the
Data.gov Web site. The directive also discussed the use of other public
venues for government data, including USAspending.gov and Recovery.gov.
---------------------------------------------------------------------------
With a multitude of newly released datasets and other
information available to the public, the administration stated
that it will be the duty of the public to keep agency
performance in check.\66\ This ``crowdsourcing,'' or using the
collective opinions of a mass, online audience, may improve the
quality of data that is released to the public by allowing more
people to search through datasets. Reliance upon crowdsourcing,
however, may give those members of the public with more time
and resources more opportunity to review and analyze Federal
data, effectively privileging certain groups.
---------------------------------------------------------------------------
\66\ At a December 10, 2009, Senate Budget Committee Task Force on
Government Performance hearing, both of the Obama administration's
witnesses said that watchdog groups and members of the public would
enforce agency accountability. U.S. Congress, Senate Committee on the
Budget, Task Force on Government Performance, Data-Driven Performance:
Using Technology to Deliver Results, 111th Cong., 1st sess., December
10, 2009, at http://www.budget.senate.gov/democratic/public/index.cfm/
hearings?ID=7c1b89ca-d5cb-4c13-a3b3-f6f842a02d57.
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Access to these datasets also may prompt additional
questions or concerns. Several might be highlighted.
Releasing these datasets to the public assumes that the
public and oversight bodies have the knowledge, capacity, and
resources to evaluate the data, offer valid insights, and reach
replicable results and verifiable conclusions.
Inadvertent or purposeful manipulation of the datasets may
allow certain groups or individuals to present unclear or
skewed interpretations of government data.
As agencies release hundreds or thousands of datasets, users
may need specialized knowledge to identify appropriate datasets
to meet their needs.
Counterintuitively, this releasing of vast amounts of data
may make public access and participation more difficult, adding
to the aforementioned information overload. For example, public
users and Members of Congress may have to sift through
extensive information or thousands of datasets to find what
they need to answer their policy questions.
Federal and non-Federal stakeholders may not be familiar
with the datasets held by each agency, or may not be aware of
unique sensitivities of these data.
There may be significant costs associated with adapting
certain datasets and vernacular to more standardized and
accessible formats.
A related oversight issue may arise. Executive branch
agencies may be releasing only certain information and
datasets, while keeping others from public view for a variety
of potential reasons that might or might not raise
concerns.\67\
---------------------------------------------------------------------------
\67\ For discussion, see CRS Report R42817, Government Transparency
and Secrecy: An Examination of Meaning and Its Use in the Executive
Branch, by Wendy Ginsberg et al.
---------------------------------------------------------------------------
Over time, changing circumstances and technologies also may
change the practical meanings of access and participation. As
noted earlier, FACA allows members of the public to participate
in the policymaking process. The law requires agencies to
provide public access to meetings. If a member of the public is
unable to attend the meeting, he or she can access meeting
records. In many cases, Federal agencies are using new
technology to make meetings and records more accessible. For
example, some agencies place committee records online and make
audio or video recordings of the meetings available online.
Additionally, some departments or agencies, including the
Department of Health and Human Services, webcast many meetings
and permit online audience members to submit questions to
committees in real time. These new methods of access and
participation, however, may raise new considerations for
Congress. For example, does providing public online access
allow agencies to hold meetings in inconvenient or publicly
inaccessible locations, thereby limiting in-person access? Does
providing electronic access privilege those with online access
or higher Internet bandwidth? Questions like these seem likely
to continue to arise in many contexts.
Concluding Observations: Looking Back and Looking Ahead
The Federal Government has experienced considerable
evolution in the last century. The last hundred years were a
period when Congress took many steps to embed transparency,
participation, and representation into the ways in which
agencies operate--increasing the intensity with which agencies
interact with non-Federal stakeholders. The pace of change
facing the Federal Government and the Nation at large appears
to continue unabated. Consequently, Congress may see an ongoing
need to revisit the ways in which agencies operate.
Changes in political and social context--as well as
leveraging of new technologies--have provided more
opportunities for, and presented additional complexities to,
public engagement with the government. For example, Congress
has amended the Freedom of Information Act several times,
including in one instance to expand the definition of
``representative of the news media'' to include activities
associated with bloggers.\68\ Yet just as transparency,
participation, and representation have transformed many aspects
of how the public may engage with agencies, increased public
engagement simultaneously raises issues for Congress in its
varied lawmaking, representational, and oversight work. As time
passes, it appears likely that Congress will wrestle with many
of the same issues and tradeoffs, but in new guises.
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\68\ P.L. 110-175, 121 Stat. 2524 (2007). Status as a
representative of the news media reduces the fees affiliated with
processing a request for records, compared to other types of
requesters.
Committee Assignments and Party Leadership: An Analysis of Developments
in the Modern Congress
Judy Schneider
Specialist on the Congress
----------
House and Senate rules, supplemented by party rules and
practices, have changed many times since the First
Congress. Changes have been made in management of the
system, assignment decisions, and chair selection in a
manner that allows committees to perform their work yet
serves the evolving goals of party leaders and
individual Members alike. However, it seems evident
that, over the last 20 years or so party leaders have
become frustrated with rank-and-file Members; rank-and-
file Members have become frustrated with committee
leaders; and committee leaders have become frustrated
with party leaders. This frustration often leads to
blaming the system, whether it is a system of strong
committees or strong party leaders. How to lessen the
frustration without destroying a system that seems to
have worked for over 200 years is a continuing
struggle.
Introduction
Numerous House and Senate rules address the committee
system, including membership, leadership, jurisdiction, and
referral. Party caucus and conference rules also govern the
organization and structure of committees. In addition, many
party rules supplement or even circumvent Chamber rules to
reflect, for example, the size of the majority and the
political and other needs of both the majority party and its
individual members. Finally, the appointment of committee
members and the selection of most committee chairs is
essentially a party function rather than a Chamber or
individual committee function.
Chamber and party rules and practices on organizing the
committee system have changed many times over more than two
centuries. Party leaders and party members have promoted or
made changes in order to manage the committee system,
assignments to committees, and chair selection in a manner that
allows committees to perform their policy work while serving
the goals of party leaders and individual Members alike.
Congress has two main centers of power: committees and
parties. A key objective of this report is to assess their
relationship.
The report is organized into eight discrete but generally
interconnected sections. The first three sections provide a
brief historical overview of the committee system. The first
section discusses committee organization from the First
Congress (1789) and ends prior to the adoption of the
Legislative Reorganization Act (LRA) of 1946 in the 79th
Congress. The second section examines changes to the committee
system made by the 1946 LRA as well as those included in the
LRA of 1970. The third section focuses on committee system
reforms after 1970. Special emphasis on the process for
assigning Representatives and Senators to committees is
provided in these sections as well as throughout the report.
The fourth section deals with committee jurisdiction, the
referral of legislation to committees, and their relationship
to Members' committee assignments. A principal motivation for
Members in seeking assignment to a specific committee is the
committee's jurisdiction. Referrals of legislation are based on
this jurisdiction.
The fifth section provides a detailed review of the
committee assignment process for Members of the House and
Senate. The sixth section takes up the selection of committee
chairs. These two sections overlap. Members have goals in
seeking committee assignments, and party leaders often have
different goals in making those assignments. The process for
assigning Members to committee and selecting committee chairs
has undergone many changes in the modern era. For example,
majority party members for many decades ascended to
chairmanships by being the lawmaker with the most years of
continuous service on a committee. That has changed in
contemporary times.
The fifth and sixth sections (on committee assignments and
committee chair selection, respectively) also explain the
changes in the two processes and examine some of the potential
tensions between individual Members' goals and party leaders'
goals in both procedures.
The report concludes with two interrelated sections. The
seventh section analyzes a number of structural issues (the
assignment process, for example) inherent to the development of
the committee system. The eighth ties together some of the
overarching themes reflected in this report. The basic message
is that the committee system keeps evolving to accommodate the
work of Congress and the goals of individual Members and party
leaders.
Committee Organization: 1st Congress to 79th Congress
Woodrow Wilson, in his seminal work Congressional
Government, stated that the Congress sits not for serious
discussion but to sanction the conclusions of its
committees.\1\ The organizational structure of the modern
committees in the House of Representatives and Senate might
have had its origins in the First Congress, but little remains
from that period. Committees, then and now, vary in their
structure, the scope of their activities, and the political
environment in which they operate. Much of this variety
accommodates the needs of a Member's party, the Member's party
leadership, and the individual members of a committee.
---------------------------------------------------------------------------
\1\ Woodrow Wilson, Congressional Government (1885; repr.,
Cleveland: Meridian Books, 1956), p. 69.
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In the earliest Congresses, the House would resolve into a
Committee of the Whole to decide the general principles of
legislation and then create a temporary select committee to
draft a final product. Several hundred select or special
committees were created during the first several Congresses.
The transition to standing committees, however, began almost
immediately. The Committee on Elections was created in 1789;
the Committee on Commerce and Manufacturers and the Committee
on Revision of the Laws were created in 1795. The Ways and
Means Committee was established 7 years later, although it
existed as a select committee beginning in 1789, was dissolved
soon thereafter, and was then again reestablished as a select
committee in 1795. Judiciary was established in 1813 and
Agriculture in 1820. By 1900, the House had 58 standing
committees; 30 years later it had 67 standing committees. In
1927, the House abolished several panels by merging them into
one committee.
The Senate's early history was similar. Hundreds of
temporary, ad hoc panels were created to draft legislation,
make policy recommendations, or both, but a transition to
standing committees commenced early in the Senate's history. As
in the House, a Committee on Elections was created in 1789. In
1816, the Senate created its first standing legislative
committees: Foreign Relations, Finance, Commerce and
Manufactures, Military Affairs, Militia, Naval Affairs, Public
Lands, Claims, Judiciary, Post Office and Post Roads, Pensions,
and District of Columbia.\2\ By 1844 there were 27 standing
committees, by 1898 there were 49 standing panels, and by 1920
there were 74. A Senate reorganization in 1921 abolished 41
committees, mainly those that had been moribund for years.
---------------------------------------------------------------------------
\2\ There were four standing housekeeping committees established
prior to 1816: Enrolled Bills was created in 1789, Engrossed Bills in
1806, Library in 1806, and Audit and Control of the Contingent Expenses
of the Senate in 1807.
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Each Chamber created an Appropriations Committee, in part
to manage the debts incurred from the Civil War. The House
created its panel in 1865 in order to alleviate the legislative
burden on the Committee on Ways and Means, which already had
responsibility for among the most complex and important
legislation: taxes, tariffs, and spending. The Senate followed
suit in 1867 in order to ease a similar burden on the Finance
Committee.\3\
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\3\ The role of both Appropriations Committees has changed through
time. For example, in 1885 in the House and in 1899 in the Senate, the
panels had most appropriations measures removed from their
jurisdiction. It was not until the Budget and Accounting Act of 1921
that the Appropriations Committees gained back authority over the
appropriations process as it is recognized today. The 1921 act also
created the Bureau of the Budget, the precursor of the Office of
Management and Budget, and the General Accounting Office, now known as
the Government Accountability Office. See also CRS Report RL31572,
Appropriations Subcommittee Structure: History of Changes from 1920 to
2013, by Jessica Tollestrup.
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Standing committees arose early, as it became apparent that
continuing to create a select committee for each legislative
proposal was administratively difficult. It also meant that
each Chamber had to consider an issue at least twice: first to
create the select committee and then to debate the proposal
itself. Standing committees, as permanent entities, provided
continuity from one Congress to the next, and the incoming
Members could develop expertise over time through service on
permanent committees.
Legislative Reorganization Acts of 1946 and 1970 \4\
---------------------------------------------------------------------------
\4\ See CRS Report RL31835, Reorganization of the House of
Representatives: Modern Reform Efforts, by Judy Schneider, Betsy
Palmer, and Christopher M. Davis; and CRS Report RL32112,
Reorganization of the Senate: Modern Reform Efforts, by Judy Schneider
et al.
---------------------------------------------------------------------------
As World War II drew to a close, Members realized that the
impact of the Depression of the 1930s and war in the 1940s
necessitated a review of the Federal Government structure,
which had seen an explosion in the number of departments,
agencies, and programs during those years. Members also
recognized the need to review Congress' own organization and
structure and created a Joint Committee on the Organization of
Congress to do an extensive examination of the organization and
operation of Congress.\5\
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\5\ Congress 2 years later enacted legislation, signed by President
Harry Truman, to similarly evaluate the executive branch. The
legislation created the Commission on Organization of the Executive
Branch of the Government, known as the Hoover Commission, after its
chair, former President Herbert Hoover.
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The Legislative Reorganization Act of 1946 (P.L. 601) is
the seminal law affecting the committee system in the House and
Senate. Its immense scope was unprecedented. The objectives of
the legislation included streamlining and simplifying the
committee structure, eliminating the use of select committees,
clarifying committee responsibilities, defining the
jurisdiction for each panel, and reducing potential
jurisdictional disputes. Never before had Congress made such
broad changes in its organization, administration, procedures,
resources, and workload management. Never before had Congress
so radically restructured its committee system, and never
before had the two Chambers worked so broadly in tandem.
The measure consolidated the 33 Senate standing committees
to 15 and the 48 House standing committees to 19. The measure
imposed limitations on the number of panels on which Members
could serve, provided for professional committee staff,\6\ and
exhorted committees to increase oversight of the executive
branch, among other things. In the two Congresses following
passage of this expansive legislation, no challenges were
levied to it, nor were changes made to it, even though one of
the two Congresses was controlled by Democrats and the other by
Republicans.
---------------------------------------------------------------------------
\6\ See the companion CRS centennial report in this volume,
Congressional Staffing: The Continuity of Change and Reform, by Ida A.
Brudnick.
---------------------------------------------------------------------------
When the 80th Congress convened in January 1947,
implementation of the act was foremost in each Chamber's and
each party's mind. Republicans gained control of both Houses
for the first time since 1931, making committee membership
changes necessitated by the committee consolidation easier to
accomplish. In the House, 102 Members of the 79th Congress did
not return. In the Senate, 22 Senators whose terms were
expiring did not return.
Prior to the legislation, House standing committees ranged
in size from 2 to 42 members, with a committee having an
average of 19 members. Under the act, 15 of the standing
committees had an average of 25 members. Before the act, Senate
standing committees ranged in size from 3 to 25 members, with
an average of 15 members. Under the act, all the Senate
standing committees had 13 members--except Appropriations,
which had 21, compared to 25 prior to the act.
Before the act, each Senator was entitled to serve on five
standing committees: three so-called major committees and two
so-called minor committees. Under the act, Senators were
limited to service on no more than two standing committees,
although some exemptions were allowed. House Members were
limited to service on just one standing committee.
In the years following the implementation of the 1946 act,
policy issues continued to grow in complexity and visibility,
and some Members wanted to be involved in all aspects of an
issue. Several panels created subcommittees in order to
circumvent the literal jurisdictional terms included in the
1946 act, but committee chairs took over some of those
chairmanships as well.
Congress again created a Joint Committee on the
Organization of Congress, and the resulting Legislative
Reorganization Act of 1970 (P.L. 91-510) was the second time in
history that Congress adopted a measure to alter its
organization and operations. Although not as extensive as the
1946 law with respect to the organization of committees, some
changes were included.\7\ Several changes to the committee
system were important, nonetheless, including creation of a
Senate Veterans' Affairs Committee with jurisdiction taken from
other panels and responsibility for urban affairs policy given
to the renamed Senate Committee on Banking, Housing, and Urban
Affairs.
---------------------------------------------------------------------------
\7\ Most of the changes related to the committee system affected
committee rules, committee hearings and meetings, and committee
reports. The requirement for committees to adopt rules was in part a
means to curb the committee chairs' largely unfettered authority.
---------------------------------------------------------------------------
With civil rights legislation in the forefront and Southern
Senators blocking legislation, the debate in the joint
committee provided an outlet for those Members who supported
civil rights legislation to limit the multiple roles of civil
rights opponents. Senate committee sizes were reduced, and
Senators were limited to service on two major committees and
one minor one. A Senator could hold only one committee
chairmanship and not more than one subcommittee chairmanship on
any major committee. Four committees--eventually known as the
``Super A'' or ``Big Four'' committees--were singled out, and
Senators could serve on only one such committee.\8\
---------------------------------------------------------------------------
\8\ The Super A committees for both parties were Appropriations,
Armed Services, Finance, and Foreign Relations. Democrats removed the
Foreign Relations Committee from this category in recent years. See
``Assignment limitations'' under Senate below.
---------------------------------------------------------------------------
Committee System Reforms After 1970
The House and Senate committee systems of the LRAs needed
adaptation to the new policy issues of the 1970s and later.
Moreover, there was an influx of younger Members who did not
want to wait decades to hold a position of power on a
committee. Efforts to reform the committee system in the House
in 1974 and 1980, however, saw limited success. The House
Democratic caucus made numerous changes affecting its committee
assignment system, perhaps the most important being disallowing
the chair of a major committee from serving on another
committee. Nevertheless, some changes related to policy issues
were made in the House before and after 1970: A new Committee
on Science and Astronautics had been created in 1958, a
Committee on Standards of Official Conduct (now Ethics) was
created in 1967, and a Committee on the Budget was created in
1974. A new standing Committee on Homeland Security was created
in 2005, after two Congresses in which a Select Committee on
Homeland Security existed.\9\
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\9\ In the 107th Congress, a select committee comprising leaders
from both parties was charged with drafting the organic legislation for
the proposed Department of Homeland Security. In the 108th Congress, a
new select committee provided oversight of the new department and was
directed to make recommendations to the House on creating a standing
Homeland Security Committee.
---------------------------------------------------------------------------
Efforts to reform the Senate committee system in 1977 were
more successful, with, among other changes, six panels
abolished. As in the House, a Committee on the Budget was
created in 1974. A 1984 Senate attempt to address changes to
the Senate assignment process was less successful.\10\ In 2004,
the Senate modified the jurisdiction of its Committee on
Governmental Affairs and renamed the committee as the Committee
on Homeland Security and Governmental Affairs, effective in
2005.
---------------------------------------------------------------------------
\10\ Seventeen committee slots were eliminated. See CRS Report
RL32112, Reorganization of the Senate: Modern Reform Efforts, by Judy
Schneider et al.
---------------------------------------------------------------------------
A third Joint Committee on the Organization of Congress was
created in 1992. House Members advocated limiting committee
assignments and reducing the number of subcommittees. Senators
also advocated reducing the number of subcommittees and
limiting the number of committee and subcommittee assignments.
Neither Chamber took action on the recommendations,\11\
although, when the next Congress convened and Republicans took
control of both Chambers, many of the recommendations were
revisited and several were adopted.
---------------------------------------------------------------------------
\11\ In the House, however, four select committees--service on
which did not count against committee assignment limits--were
abolished.
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One major change in the committee system during the post-
1970 era was the growth of subcommittees. It could be argued
that the power of committee chairs--most of whom were selected
by some mechanism employed by party leadership--was curbed.
However, because party leadership had a limited role in the
selection of subcommittee leaders, subcommittee leaders
acquired added power vis-a-vis committee chairs. That has
changed, at least in the House, where party rules require that
subcommittee leaders of some powerful committees be approved by
a party's assignment entity and confirmed by a vote of the full
caucus or conference.
Committees' and Members' policy workloads continued to
increase, and Congress as a whole was seeking to assert
congressional authority vis-a-vis the President. Members were
stretched in their ability to keep up with their committee and
subcommittee work. Newer Members wanted more opportunities to
serve on committees, exercise influence over policy areas, and
chair subcommittees, opportunities that were in part blocked by
senior Members' multiple committee assignments and senior
committee positions. Some Members, therefore, again pushed for
limits on committee assignments.
The 1946 act, and succeeding revisions in the structure and
rules of each Chamber, changed many things about Congress as an
institution and about the committee system specifically.
However, the foundation laid in the 1946 LRA is, in most
respects, still intact.
Jurisdiction and Referral
Perhaps no characteristic of the committee system is more
critical than its jurisdictional structure--the way control
over policy subjects is divided and distributed. Both House and
Senate rules address the jurisdiction of each committee and how
measures are referred to committee. Members often seek
committee assignments based on the language of these rules.
House Rule X and Senate Rule XXV designate the subject matter
within the purview of each committee. However, House and Senate
jurisdictional language is broad and reflects an era in which
governmental activity was not so extensive and relations among
policies were not so intertwined as now. As noted earlier, much
of this language emanated from the 1946 LRA, with subsequent
changes enacted without reference to a comprehensive
perspective through time. Topic omissions and a lack of
clarity, as well as overlapping jurisdiction among committees
in some areas, exist. Precedent, therefore, also plays a role
in determining a committee's jurisdiction over a particular
issue.
Referral of measures is formally the responsibility of the
Presiding Officer in each Chamber, although in practice the
Chamber's Parliamentarian assumes this responsibility. In the
House, a referral is made to the panel with ``primary''
responsibility, with an allowance for measures to be referred
to other panels in a ``sequential'' manner. The Presiding
Officer also has authority to impose time limits on panels
receiving a referral.\12\ In 2003, the Speaker of the House was
also authorized to refer measures without the designation of a
primary committee under ``exceptional circumstances.'' It
appears that this authority has been exercised only once.
---------------------------------------------------------------------------
\12\ Prior to 1995, measures could be referred simultaneously to
two or more committees.
---------------------------------------------------------------------------
Formal agreements among committees, referred to as
memoranda of understanding, often supplement the language in
Rule X to assist in determining a referral. Competition among
committees occurs, especially related to measures that in the
past had been jointly referred or issues of breadth and
complexity.\13\ For example, Medicare Part A is within the
jurisdiction of one committee, and Medicare Part B is within
the jurisdiction of a different committee. For a Member seeking
assignment to a panel responsible for health care, to which
panel would he or she seek assignment? Relatedly, if a
comprehensive health care measure were introduced, which panel
would be deemed primary, and which would receive a sequential
referral?
---------------------------------------------------------------------------
\13\ See CRS Report 98-175, House Committee Jurisdiction and
Referral: Rules and Practice, by Judy Schneider.
---------------------------------------------------------------------------
In the Senate, a referral is made to the committee with
``predominant'' jurisdiction; referral to additional committees
is rare. In fact, Senate leaders have authority (assuming
unanimous consent cannot be attained) to refer a measure to
more than one panel by motion. This procedure has never been
invoked.\14\ Many Senators, staff, and advocates understand
that a desired legislative outcome can be influenced by
creative drafting in order to have a measure referred to a
friendly or unfriendly committee.
---------------------------------------------------------------------------
\14\ See CRS Report 98-242, Committee Jurisdiction and Referral in
the Senate, by Judy Schneider.
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For example, is tobacco an agricultural commodity, an issue
within the purview of a largely friendly Agriculture Committee?
Or is tobacco a health risk, an issue within the predominant
responsibility of a generally unfriendly Committee on Health,
Education, Labor, and Pensions (HELP) Committee? Or is the
issue one related to advertising, such as on a billboard near
an elementary school, an issue generally considered by the
Committee on Commerce, Science, and Transportation, a panel
that has shown both sympathy and hostility on tobacco issues?
Would a Senator who represents a tobacco State but is
antismoking try to serve on the HELP Committee rather than the
Agriculture Committee? Might that same Senator, if appointed to
the Agriculture Committee, draft tobacco legislation in such a
way as to have it referred to the HELP or Commerce Committee?
House Rule X and Senate Rule XXV contain broad terms and do
not describe specific programs, as the examples of Medicare and
tobacco demonstrate. When Members seek assignments, they do so
based on their understanding and interpretation of their
Chambers' jurisdictional rules. The referral systems in the two
Chambers, however, give leadership discretion to refer
legislation in a manner to influence a measure's fate. Leaders
can use both referrals and assignments to enhance their
influence over committees and the committees' work.
Committee Assignment Process
The importance of a Member's committee assignment relates
to the Member's attitude toward his or her legislative role,
the Member's perception of district or State needs, and the
Member's own ambitions. A Member must balance realistic goals
with political reality--the needs of the leadership and the
issues that must be addressed versus those that are ``hot,''
the latter of which are most visible to constituents,
lobbyists, and the press. Further, committee jurisdictional
alignment provides Members an incentive to obtain assignment to
a panel in line with the subjects the Member wishes to pursue
legislatively or to pursue other opportunities an assignment
may provide.
Various factors govern assignment decisions. For the party
entity or party leader deciding assignments, those factors
might include party loyalty, regional considerations, personal
preference, and leadership preference. (Additional factors are
listed below under ``Party Organizations Making Committee
Assignments.'') For the individual Member, additional factors
include professional background, personal interest, the
politics of other Members of a committee, and the ability to
raise money for reelection.
At the beginning of a new Congress, resolutions containing
committee rosters are adopted in each Chamber. The rosters
reflect the party caucus or conference actions regarding both
committee assignments and seniority on each committee. Although
Members can change committees throughout their careers, most
remain on one or more of the committees to which they were
initially assigned, in part to gain seniority and eventually to
try to get a leadership position on that committee (chair or
ranking minority member). There are, nonetheless, examples of
Members who seek assignment to a less desirable panel because
the more senior members of these panels are closer to
retirement, meaning the opportunity for advancement might come
sooner than on a committee with younger leaders and leaders-in-
waiting.\15\
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\15\ Three examples of senior House Members of a recent era
changing committees after many years of service include Omar Burleson,
who moved to the Ways and Means Committee after 22 years (and having
held the chairmanship of the House Administration Committee); Edith
Green, who moved to the Appropriations Committee after 19 years of
House service; and Otis Pike, who moved to the Ways and Means Committee
after 15 years of House service. In recent Congresses, in contrast,
some freshmen Members have become subcommittee chairs or ranking
minority members.
---------------------------------------------------------------------------
It was once true that only Members from the Far West and
Rocky Mountain States were assigned to panels dealing with
public lands, and only farmers and ranchers were placed on
panels dealing with agriculture. The story of former
Representative Shirley Chisholm speaks to a change in
assignment requests and the appointment of Members that began
in the late 1960s. Although she was from a very urban district
in New York City, Representative Chisholm was assigned to the
Committee on Agriculture because of its jurisdiction over food
stamps and other food programs. She protested. Leadership
responded to her protestations and reassigned her to the
Veterans' Affairs Committee until the following Congress when
she received assignment to the panel she had originally sought,
Education and Labor.\16\
---------------------------------------------------------------------------
\16\ Chisholm reportedly responded to her party leadership with the
following retort: ``Apparently all they know here in Washington about
Brooklyn is that a tree grew there.'' Several years later, Chisholm was
assigned to the Committee on Rules, an arm of the party leadership. See
James Barron, ``Shirley Chisholm, `Unbossed' Pioneer in Congress, Is
Dead at 80,'' New York Times, January 3, 2005.
---------------------------------------------------------------------------
Similarly, the Armed Services Committees in both Chambers
traditionally had more conservative Members assigned to it.
That too began to change when more liberal Members were
assigned to the panel as the Nation began to view the war in
Vietnam more critically. The Judiciary Committee in each
Chamber traditionally had only Members with law degrees
appointed to it. That, too, has changed. Representative Sonny
Bono, for example, argued that his understanding of copyright
law was more practical than that of most lawyers; he was
assigned to the Judiciary Committee. Senator Al Franken, also
not an attorney, made a similar case for his assignment to the
Judiciary Committee.\17\
---------------------------------------------------------------------------
\17\ Senate Democratic rules generally prohibit Senators from the
same State from serving on the same committee. This did not impede
Senator Franken in being appointed to the Judiciary Committee, on which
his senior State colleague already served.
---------------------------------------------------------------------------
As the examples of Senator Franken and Representative Bono
attest, their desire to serve on particular committees caused
the leadership to break tradition when confronted with the
desires of Members who were well-known public figures. Other
nonlawyers also sought assignment to the Chambers' Judiciary
Committees but were not accommodated. Antiwar Members could be
assigned to the House Armed Services Committee, but their small
number could not outvote the majority of prodefense committee
members. A Member attracting public attention, such as
Representative Chisholm, was accommodated, but other Members
who manage to attract public attention could irritate
leadership sufficiently that they might be removed from the
committee or committees to which they were originally assigned
or be placed on less desirous committees with less influence
over policy issues that matter to leadership. Leaders have
other options, too, such as assigning an outspoken Member to a
committee that limits the Member's visibility, such as the
Intelligence Committee.
Size and Ratio
The Constitution is silent on committees. A House rule did
exist that established the size of committees; however, that
rule was removed with adoption of the Committee Reform
Amendments of 1974, the so-called Bolling committee
reforms.\18\ Committee sizes are included in Senate rules,
although they are often ignored. The standing rules of each
Chamber are silent regarding party ratios on committees.
Currently, soon after the biennial election, party leaders in
each Chamber meet to negotiate individual committee sizes and
party ratios. In recent years, actual negotiation has been
conducted by Senate party leaders but infrequently by House
party leaders.
---------------------------------------------------------------------------
\18\ H. Res. 988, agreed to October 8, 1974. Section 301 deleted
the size rule. Representative Richard Bolling, coauthor with
Representative David Martin of the resolution to create a select
committee to study the committee system, served as chair of the select
committee, and Representative Martin served as the ranking Republican.
---------------------------------------------------------------------------
Parties in both Chambers strive to draft tentative
committee sizes and ratios prior to the organization meetings
held in late November or early December. Sometimes, however,
this process extends into the new Congress.
Committee sizes are largely static, with ratios tending to
reflect party strength in a Chamber.\19\ In the Senate, the
ratio is generally uniform among committees. In the House, that
is not the case. For example, the Committee on Rules has a
ratio of two to one, plus one, and both the Appropriations and
Energy and Commerce Committees have had, in recent Congresses,
ratios that gave the majority party more seats than would
reflect party strength. Both the Appropriations Committee and
Energy and Commerce Committee have extensive jurisdictional
portfolios, are perceived as important policy avenues for a
leadership agenda, and are seen as useful assignments for
access to the ability to raise campaign funds. In both
Chambers, committee size and ratio have also been altered to
accommodate the wishes of an individual Member or the needs of
the respective party leaders.
---------------------------------------------------------------------------
\19\ See CRS Report R40478, House Committee Party Ratios: 98th-
113th Congresses, by Matthew E. Glassman; and CRS Report RL34752,
Senate Committee Party Ratios: 98th-112th Congresses, by Matthew E.
Glassman.
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Each Chamber has constitutional authority to make its own
rules, which includes organizing the committee system. In 1981,
House Republicans sought to change the ratios on four
committees (Appropriations, Budget, Rules, and Ways and Means)
by offering an amendment to the resolution adopting the rules
of the House for that Congress. The amendment failed, with one
Democrat supporting the Republican amendment. Republicans then
filed a lawsuit against the Democratic leadership, claiming
violations of the Constitution harming minority party Members
and their constituents, who were denied proportional
representation on committees. The U.S. District Court for the
District of Columbia dismissed the case on October 8, 1981,
holding committee organization was an internal matter under
separation of powers; the dismissal was upheld on appeal.\20\
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\20\ Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1983).
---------------------------------------------------------------------------
Once sizes and ratios are determined, the committee
assignment process begins in earnest. A combination of Chamber
and party rules govern how many and what types of committees a
Member may serve on.
Earlier Assignment Procedures
In 1789, in the First Congress, members of so-called
important House committees were elected by ballot, although the
Speaker was charged with making assignments to panels with
fewer than three members. Beginning in 1790, pursuant to House
rule, all committee members, regardless of party, were
appointed by the Speaker of the House, although allowance was
made for the House majority to question the Speaker's
selections. Despite several attempts to curb the Speaker's sole
power to make committee assignments, his authority remained in
place until the so-called ``revolt of 1910'' and the overthrow
of Speaker Joseph Cannon's autocratic reign.\21\
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\21\ The major complaints against Speaker Cannon included that he
delayed making committee assignments, appointed only political allies
to important panels, and violated seniority in making assignments and
selecting committee chairs. See the companion CRS centennial report in
this volume, The Evolving Congress: Overview and Analysis of the Modern
Era, by Walter J. Oleszek.
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Subsequently, Democrats and Republicans chose different
methods for making committee assignments. Democrats on the
House Ways and Means Committee acquired responsibility for
making all Democratic committee assignments in the House from
1911 until 1975. (After the 1910 revolt, Speakers gradually
gained influence in the appointment of majority party Members
to the Rules Committee.) The Democratic Members of the Ways and
Means Committee were selected by the entire Democratic caucus,
and the party leader, by tradition, was chair of the
committee.\22\ Further, Ways and Means Committee members were
not allowed to serve on other House committees, essentially the
beginning of designating ``exclusive'' committees, as explained
below (``Assignment Limitations'').
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\22\ Many scholars do not agree with the importance of this change.
Some contend that authority merely shifted to the majority leader from
the Speaker of the House. See Kenneth A. Shepsle, The Giant Jigsaw
Puzzle (Chicago: University of Chicago Press, 1978), pp. 25-28.
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House Republican committee assignments were made by the
floor leader from 1911 to 1919 and then transferred in 1917 to
a newly created Committee on Committees. This entity allowed a
Republican Representative from each State delegation to serve,
and each Member had as many votes as there were Republicans in
the State's delegation.
The Republican Conference in 1917 dictated that no floor
leader could also chair a legislative committee, in effect
severing the connection with the chairmanship of the Committee
on Ways and Means. Soon thereafter, the Democrats adopted
similar rules.
In the early Congresses, assignment of Senators to panels
was a haphazard affair. In fact, the majority party in the
Senate did not necessarily control the majority of seats:
Assignments were made by a vote of the entire Senate
membership. In 1823, the Presiding Officer was given the
authority to appoint committee members.\23\ This approach was
not used in 1825 but was reinstated in 1826. In 1828, the
assignment authority was granted to the President pro tempore.
Beginning in 1833, however, Senate committee members were
determined by ballot in each session of Congress, with the
committee member who received the most votes during balloting
named as committee chair.\24\ This approach was not used
between 1837 and 1845, when it was waived by unanimous consent,
but was reinstated in 1845. In 1846, the Senate defeated an
attempt to allow the Vice President to make committee
assignments. The majority leader, with the agreement of the
minority leader, then submitted a list of committee members
ranked by committee seniority. The practice of submitting lists
continues today.
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\23\ That same year, the Senate rejected a proposal that would have
allowed the full Senate to choose the chairs of the most important
committees, and those chairs would then have had the power to make all
other committee assignments.
\24\ Lauros Grant McConachie, Congressional Committees: A Study of
the Origins and Development of Our National and Local Legislative
Methods (New York: Crowell, 1898), p. 323.
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Party Organizations Making Committee Assignments
Today, recommendations for assignment of party members to
serve on committees are made by party entities:
For the Senate Democrats, a Steering and Coordination
Committee
For the Senate Republicans, a Committee on Committees
For the House Democrats, a Steering and Policy Committee
For the House Republicans, a Steering Committee
Constituted prior to the early organization meetings
traditionally held in November and December, members of these
groups are appointed by the respective party leader within any
constraint of party caucus or conference rules. Membership on
these panels may vary each Congress, but the panels generally
are structured to give the party leadership considerable
influence.
The party committees recommend committee slates, generally
by secret ballot, to the respective full caucus or conference,
which typically ratifies them. House and Senate resolutions
reflecting the recommendations are then presented by each party
entity and adopted without debate or amendment by the
respective Chamber.
In making recommendations to the full party caucus or
conference, several factors influence assignment decisions,
including the number of vacancies on each committee, the number
of Members competing for those vacancies, and Chamber rules
regarding limitations on each committee. Also taken into
account are the Member's seniority, background, ideology,
electoral margin, and leadership support and preference.
Geographic balance is often considered as well. Additional
factors were listed above (``Committee Assignment Process'').
House
The Democratic Steering Committee was created in 1933 and
existed until the end of the 1950s, although it was mostly
dormant throughout this period. Congressional scholars have
suggested that under a strong Speaker, such as Sam Rayburn of
Texas, a personal relationship was preferable to a formal
structure. In 1962, at the request of party liberals, the
Steering Committee was reestablished, although its
responsibilities were unclear.\25\ In 1973, it was
reconstituted as the Democratic Steering and Policy Committee
and, in 1974, was given authority to recommend committee
assignments and committee and some subcommittee leaders. In
1994, with the Democrats now in the minority, the panel was
divided into a Steering Committee and a distinct Policy
Committee; in 2003, although Democrats were still in the
minority, the panel was recombined into a Steering and Policy
Committee.
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\25\ Randall B. Ripley, Party Leaders in the House of
Representatives (Washington, DC: Brookings Institution, 1967), p. 47.
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Currently, the Democratic Steering and Policy Committee
comprises regionally elected Members, top party and committee
leaders, a representative of the freshmen class, and up to 16
Members appointed by the Democratic leader. Each member has one
vote.
The precursor to the Republican Steering Committee was
established in 1919 as a Committee on Committees, comprising
Republicans representing each State that had elected at least
one Republican to the House; each State delegation selected its
representative on the Committee on Committees. Starting in
1953, a subcommittee of the Committee on Committees was created
and given responsibility for making committee assignments. The
Republican leader selected the subcommittee members. It
comprised only Members from States with the largest Republican
delegations: New York, Ohio, Pennsylvania, California,
Illinois, Michigan, and New Jersey. The Republican leader did
not have a vote, and the number of votes cast by each other
member equaled the number of Republican Members in a State's
delegation. In 1965, the Committee on Committees was
restructured and reconstituted as an Executive Committee,
retaining its responsibility for making committee assignments.
Although membership on the Executive Committee changed, the
Executive Committee structure remained unchanged until the
100th Congress (1987-1989).
In the 100th Congress, the Republican leader appointed a
Task Force on Conference Rules and Procedures, which in turn
created a Subcommittee on Committee Assignments to review and
possibly reform the assignment process and the Executive
Committee structure. The subcommittee recommended making the
Republican leader a voting member of the Executive Committee,
electing regional representatives based on compact State
groupings, and providing representation for freshmen and women
Members. In the following Congress, the Executive Committee was
renamed the Committee on Committees. When Republicans gained
control of the majority in 1995, the Committee on Committees
was renamed the Steering Committee, and the party leadership
influence over committee assignments was strengthened.
Currently, the Republican Steering Committee comprises
regionally elected Members, top party and committee leaders, a
representative of the sophomore class, and one or more
representatives of the freshmen class. The Speaker has five
votes, the majority leader has two votes, and other members
have one vote each.
assignment limitations
Party rules, rather than Chamber rules, categorize
committees. Both parties designate Appropriations, Energy and
Commerce, Financial Services, Rules, and Ways and Means as
exclusive committees. For the Democrats, however, Energy and
Commerce is deemed exclusive only for Members named in and
after the 104th Congress, and Financial Services is deemed
exclusive only for Members named in and after the 109th
Congress.
Under Chamber rules, and in some cases supplemented by
party rules, Members may serve on two standing committees.
Waivers are routinely granted by the Democratic Steering and
Policy Committee and the Republican Steering Committee to allow
Members to serve on three or, in some cases, four standing
committees, but waivers are intended to be temporary for one or
perhaps two Congresses. There are nonetheless exceptions. Both
parties limit service to one exclusive committee, but waivers
are also granted to Members assigned to an exclusive committee.
Service on the House Administration and Budget Committees
are exempt from service limitations for Democrats, and
Republicans are entitled to take a leave of absence and accrue
seniority while serving on the Rules Committee. Both parties
entitle their Members to serve on two nonexclusive committees.
Service on the Ethics Committee is exempted from assignment
limits for both Democrats and Republicans, although service on
the Ethics Committee is limited to three Congresses in the last
five. Service on the Budget Committee is limited to no more
than four Congresses in the last six, and service on the
Permanent Select Committee on Intelligence has the same
limitation. As with service on other panels, waivers are often
granted.\26\
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\26\ See CRS Report 98-151, House Committees: Categories and Rules
for Committee Assignments, by Judy Schneider.
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Senate
As noted above, each party creates a panel to assist in the
assignment process. Democratic Steering and Coordination
Committee members are appointed by the Democratic leader, and
each member has one vote. Republican Committee on Committees
members are appointed by the Republican leader, and each member
has one vote.
In 2004, Senate Republicans amended conference rules to
allow the majority leader to fill half of the seats on the
``Super A'' committees as vacancies occurred. The remaining
vacancies would be filled by seniority.\27\ Super A committees
are explained immediately below.
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\27\ Veronica Olesksyn, ``Loyalty and Political Needs Shape Makeup
of Committees,'' CQ Weekly, April 11, 2005, pp. 894-896.
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assignment limitations
Senate rules categorize committees as ``A,'' ``B,'' and
``C.'' Most standing committees are considered A committees.
The B category also includes standing panels as well as one
special and one joint committee. The B panels are not perceived
as desirable as the A committees. The C committees are the
remaining joint committees, the Indian Affairs Committee, and
the Select Ethics Committee. Each party designates several
committees as ``Super A.'' The panels designated as Super A
have changed through time. For the Democrats, these panels are
Appropriations, Armed Services, and Finance. (The Foreign
Relations Committee lost Super A status in recent years.) For
the Republicans, these panels are Appropriations, Armed
Services, Finance, and Foreign Relations.\28\
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\28\ See CRS Report 98-183, Senate Committees: Categories and Rules
for Committee Assignments, by Judy Schneider.
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Senators must serve on two A committees,\29\ may serve on
one B committee, and may serve on as many C committees as they
want. Senators who serve on a Super A panel are not supposed to
serve on a second Super A committee, pursuant to party rules.
However, waivers are often granted to permit Senators to serve
on additional panels within each category.
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\29\ The so-called Johnson rule, begun in 1953 under Majority
Leader Lyndon Johnson, guaranteed that each Democratic freshmen Senator
would serve on at least one major committee assignment. Republicans
adopted their own version of the Johnson rule in 1965. A Republican
addition provided that no Republican serving on a Super A committee may
serve on a second Super A committee until all other Republicans were
offered the opportunity to serve on the panel. The Republican rule was
called the Javits rule after Senator Jacob Javits, who chaired the
entity that drafted it, although the name is rarely used today.
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Republican Conference rules prohibit Senators from the same
State from serving on the same committee, while Democratic
practice, rather than rule, shows traditional adherence to the
same principle. Again, waivers are often granted.
Committee Leadership Selection
Both parties in each Chamber have formal rules for
selecting committee leaders. Just as a Member's assignment can
affect the path of his or her career, the selection of a
committee leader can influence the agenda that the committee
follows and how the committee leadership interacts with the
minority party, his or her own party leadership, and the
individual members of the committee. Who the committee leader
is can ultimately determine the fate of legislation within that
panel's purview. There are Members who seek assignment to a
panel because of who the committee leader is, and there are
other Members who choose not to seek assignment to a particular
panel for the same reason.
For much of the Nation's history, committee chairs were
powerful figures. By the 1970s, however, that power was
beginning to erode. The Steering Committees in each Chamber
exercised more control over the selection of committee leaders,
and the seniority system was not routinely followed. The
balance of power changed from committee chairs to party
leaders, especially in the House in 1995, when Speaker Newt
Gingrich greatly de-emphasized seniority and the role of the
Steering Committee and named committee chairs of his choosing.
His successor, Dennis Hastert, employed the Steering Committee
but had applicants for each chairmanship ``audition'' and
respond to questions from the panel. It has been reported that
the questions went beyond policy goals and addressed, for
example, money raised for the campaign committees and loyalty
to the party's policy agenda.
Perhaps nothing better exemplifies this era (and the
relationship between committee jurisdiction, party leadership,
and committee assignment) than the selection of the chair of
the Energy and Commerce Committee in the 107th Congress (2001-
2003). Furthermore, when the House adopted its rules at the
convening of the 107th Congress, the rules shifted the
jurisdiction over insurance and securities from the Committee
on Energy and Commerce to the Banking and Financial Services
Committee, which was renamed the Committee on Financial
Services.
Representative Billy Tauzin, formerly a Democrat who
changed parties in 1995, had served in Congress for 11 terms
and on the Energy and Commerce Committee for 10 terms--but for
more than seven terms as a Democrat. Speaker Gingrich had
notified Tauzin that his tenure on the committee would count
toward his seniority when he changed parties, and Speaker
Hastert upheld this understanding. Representative Michael Oxley
had served 10 terms in the House and 9 on the Energy and
Commerce Committee. Speaker Hastert and the Steering Committee
selected Tauzin to chair the Energy and Commerce Committee and
Oxley to chair the Financial Services Committee, in part
justifying the selections based on the jurisdictional
changes.\30\
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\30\ In addition, there were two other candidates for chair of the
Banking Committee: Representatives Richard Baker and Marge Roukema.
Roukema was more senior to Baker on the Banking Committee.
---------------------------------------------------------------------------
Speaker John Boehner employs a Steering Committee--although
with a modification from those of his predecessors. In the
112th Congress, Speaker Boehner had four votes in the steering
panel (the majority leader had two and everyone else had one),
whereas in the 113th Congress, Speaker Boehner had five votes.
It should be noted that Speaker Boehner had served as a
committee chair and wanted to curb the top-down approach of his
predecessors as Speaker by empowering his chairs and
committees. At the start of the 113th Congress, Speaker Boehner
used his votes on the Steering Committee to deal with several
Members in the Republican Conference disfavored by the
leadership and to remove them from committees they served on
during the previous Congress.
When the Democrats regained the House majority following
the November 2006 elections, Speaker Nancy Pelosi retained a
restructured Steering and Policy Committee but gave herself
authority to appoint a specific number of members. When
Representative Henry Waxman defeated the incumbent chair, John
Dingell, for the Energy and Commerce Committee chairmanship in
the 111th Congress (2009-2011), many attributed the defeat to
the votes of members whom Speaker Pelosi had appointed to the
Steering and Policy Committee.
Both Senate Democrats and Republicans generally follow
seniority in the selection of committee chairs. There are few
exceptions to seniority as a determinant. Perhaps one of the
most notable examples of the importance of seniority occurred
in 1987, when the Republican members of the Senate Foreign
Relations Committee selected Senator Richard Lugar as their
ranking minority member. The Senate Republican Conference
overruled the selection and designated the more senior Senator
Jesse Helms as the ranking member.
Senate Republican Conference rules delineate limitations on
the number and type of chairmanships a Republican Senator may
hold. For example, a chair or ranking minority member of an A
committee may not serve as chair or ranking member of any other
committee--but the chair/ranking member of the Finance
Committee may also chair the Joint Committee on Taxation. A
chair or ranking member of a B committee may not serve as the
chair or ranking member of any other committee, except that the
chair or ranking member of the Rules and Administration
Committee may serve in that role on the Joint Printing or Joint
Library Committees. Senate Democratic Conference rules are not
publicly available, so it is not known if they address similar
issues.
Chair and Ranking Minority Member Term Limits
Both House and Senate Republicans impose term limitations
on their committee leaders. In 1995, House Republicans adopted
a House rule that limited committee and subcommittee chairs to
three consecutive terms--in effect, 6 years. House Republican
Conference rules apply term limitations to their Members if
they served as ranking member when the party was in the
minority. In 1999, House Republican leaders told their
conference that chairs coming up against their term limits
could audition to chair another panel, since the rule applied
against chairing the same committee. When the Democrats
regained the majority in 2007, they retained the rule but then
repealed it 2 years later. When Republicans won the majority
again, the rule was reinstated.\31\ House Democrats do not
impose term limits on their committee leaders.
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\31\ In 2005, the Committee on Rules was exempted from the
limitation. Four years later, the exemption was repealed, but in 2011,
it was restored.
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In 1996, Senate Republicans adopted a 6-year term limit for
committee chairs. After the Democrats took control of the
Chamber in 2001, the Republicans modified their rule so that
service as a ranking minority member did not count against the
term limit as chair. The Senate Republican Conference also
adopted a rule requiring election of a chair by secret ballot
by both a committee's Republicans and by the full Republican
Conference. Senate Democrats do not impose term limits on their
committee leaders.
What It All Means and Questions Raised
Congressional scholar Richard Fenno posited over 40 years
ago that Members have multiple motivations that shape their
decisions regarding what committee assignments to seek. These
include reelection requirements, public policy needs, and
influence within their parties and Chambers. The ``opportunity
to achieve [these] goals varies widely among committees . . . .
Members, therefore, match their individual patterns of
aspiration to the diverse patterns of opportunity presented by
[the] committees.'' \32\ Although not specifically listed in a
priority order at the time it was written, the motivations
appear to reflect an appropriate order for that time.
---------------------------------------------------------------------------
\32\ Richard Fenno, Congressmen in Committees (Boston: Little,
Brown, 1973) pp. 1-2.
---------------------------------------------------------------------------
Almost 30 years after Fenno addressed the reasons Members
seek assignment to various committees, Richard E. Cohen, a
correspondent for the National Journal, wrote a series of
articles on the decline of the committee system. He concluded
that it does not matter what committee a Member serves on,
since the increased political competition between the parties,
the Chambers, and the legislative and executive branches
contributed to the loss of committee power and the increase in
power delegated to the party leadership.\33\
---------------------------------------------------------------------------
\33\ Richard E. Cohen, ``Crumbling Committees,'' National Journal,
August 4, 1990; and Richard E. Cohen, ``Crackup of the Committees,''
National Journal, July 31, 1999.
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Most observers of Congress--Members, former Members,
congressional staff, lobbyists, journalists, and others--agree
that both Fenno and Cohen are correct. Committees still matter,
and assignment requests made by individual Members also matter.
Party leaders matter also. Perhaps most important, leaders have
power only if granted by individual Members, including
committee leaders.
As one Congress draws to a conclusion and another will soon
thereafter begin, this report examines some of the concerns
about the current state of the congressional committee system
that these same observers raised earlier.
Size, Ratio, and Assignments
As Members sought assignments to enable them to focus on
their constituents, their own policy interests, their ability
to influence policy, and the desires of their leadership,
committee sizes have tended to grow in recent years in order to
accommodate Members' goals. (At the request of some committee
chairs, several House panels have shrunk in recent years. This,
however, has caused the minority party to complain about their
access to policymaking on those panels.)
Most observers believe that committees, especially in the
House, are too large and the ratios too skewed toward the
majority on the most desirable panels. Large committees can
often make it difficult to aggregate committee members' ideas
and points of view into a coherent legislative policy. Reducing
the size of committees could increase opportunities among
committee members for more meaningful discussion. However,
reducing committee sizes might have an adverse effect on
Members' opportunities to be involved in issues important to
them, their constituents, and the Nation.\34\ Limiting leaders'
flexibility could create conflicts among party members
interested in the same slot and might require additional
bumping of committee members from panels to reflect party
strength following an election.
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\34\ Members' desire to participate in a broad array of committee
policymaking is a motivation behind both committee structure and the
expanding number of assignments for Members. See CRS Report RL32661,
House Committees: A Framework for Considering Jurisdictional
Realignment, by Michael L. Koempel.
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The relationship between size and ratio is plain. Ratios
reflect the understanding that the majority party should have
the ability through its voting strength to have the dominant
hand in policymaking. Minority members argue that they
represent the same number of constituents as majority members
and that not all policies are party driven. One of the most
frequently mentioned solutions to the concern about equitable
party ratios, especially in the House, is to make them fairly
static on all committees and to alter them only in
extraordinary circumstances. For example, the election of
Members not affiliated with either Democrats or Republicans
could allow those Members not to count in the ratio agreement.
Another option is to have proportional ratios on all panels,
although an additional majority seat could be added to the
``Super A'' committees in the Senate and to the exclusive
committees in the House.
Changes in the numbers, types, and sizes of panels and
limits on Members' assignments have been offered often but have
been rejected or implemented with difficulty due in part to
Members' interest in influencing policymaking through committee
service. Changes might be easier to adopt if Members were not
so attached to their committees--and for those who advocate
rotation of committee membership, it is unclear (and untested)
if that would have the desired effect without introducing
additional problems. Any changes to the numbers and sizes of
committees and assignment limitations would best be considered
together so that decreases in some areas do not encourage
increases in others.
House and Senate rules and party caucus and conference
rules detail the number and category of committees a Member can
serve on. Both parties in both Chambers routinely grant waivers
for Members to serve in violation of Chamber and party rules.
The process for granting such waivers is often cloaked in
secrecy. Would waivers be as prevalent if the process granting
them were known? How would a Member explain why he or she did
not receive a waiver when another colleague did? If the party
machinery recommended granting a waiver, should the entire
caucus or conference vote to confirm it?
rotation of committee membership
Rotation of committee membership has been raised as a
possibility almost since the beginning of the committee system.
As discussed below, the House Budget Committee currently
rotates its membership, and until recently, the Senate
Intelligence Committee did as well.\35\ Term limits (how many
years a Member could serve on each panel) could be listed in
Chamber rules so all Members would know who was scheduled to
leave a panel.
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\35\ CRS Report RS21955, S.Res. 445: Senate Committee
Reorganization for Homeland Security and Intelligence Matters, by Paul
S. Rundquist and Christopher M. Davis.
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Supporters of rotation argue that oversight of the
executive branch suffers when committee members who created a
program are asked to question its value. Party leaders might
have more flexibility in making committee assignments if they
could anticipate which Members' terms would be up at what time.
Supporters advocate rotation in order to allow new voices and
fresh ideas to be brought up in committee. Relatedly, rotation
would allow Members to have a more extensive understanding of a
larger number of policy issues.
Opponents of rotation note that Member expertise would
suffer. That loss of expertise could diminish the quality of
debate, both in committee and on the floor. Opponents also link
the loss of expertise to the possible increase in reliance on
congressional staff, or lobbyists, or agency or department
personnel.
house budget committee
The House Budget Committee presents a unique example of the
possible issues related to committee assignments. House rules
limit service to no more than four Congresses in a period of
six Congresses. The restriction was changed in the 96th
Congress to relax the limitation to three Congresses from two,
in any period of five successive Congresses. As for an
incumbent chair who had served on the panel for three
Congresses and as chair for not more than one Congress, he
would be eligible to serve as chair for an additional Congress.
In the 104th Congress, the limitation was changed to four
Congresses from three, in any period of six Congresses. This
remains the current pattern today.
It is clear that the assignment limitation for Members has
been changed in many Congresses to accommodate individual
Members. Members continue to seek assignment to the Budget
Committee, and changing limitation rules seemingly confirm the
panel's popularity. Is it worth considering if the House should
remove the assignment limitation and make the House Budget
Committee a permanent assignment, bringing it in line with the
Senate Budget Committee?
Committee Leaders
Committee chairs and ranking minority members are perceived
as being part of the official leadership structure in their
Chamber. However, they must also be responsive to the needs of
their committee members. Shaping the environment of committee
leaders are the structure of the party hierarchy, the
requirements of the agenda, majority status within their own
Chamber and with the other Chamber and White House, and the
calendar itself: For example, is it an election year for that
member or chair, or is it a Presidential election year? Some
committee leaders may exert leadership because the party leader
asks them to, or, alternatively, the party leader may request
that committee leaders not take up a certain matter, which
means the panel might lose visibility, prestige, and/or
influence over a substantive issue.
The process of selecting the committee leader surely
affects his or her activity. Accordingly, the selection of
committee leaders has always been a subject of discussion.
Should the party leader unilaterally choose a committee leader,
or should the party caucus or conference make that decision?
Should the committee members select their leaders? Would the
party caucus or conference or party leadership have any role in
ratifying the selection? If not, should they? Should all panels
be treated equally with the same selection approach? And,
whichever way is selected, the key question remains: Would it
make a difference? Would the policy outcome change? Would the
committee's relationship with the party leadership differ?
The issue of term limits for Republicans in both Chambers
has occasioned the majority of discussion among Congress
watchers. Senior Members serve on numerous committees and
therefore could conceivably chair three different panels in
distinct Congresses for a total of 18 years. (After reaching
their 6-year limits as leaders of committees in the 112th
Congress, several senior Members used their seniority on other
panels to chair different committees in the 113th Congress. The
effect was akin to a political game of ``musical chairs.'')
Members who serve on only one committee, however, would be
limited to only one opportunity to chair, especially if that
Member served on an exclusive panel and did not seek a waiver
from the Steering Committee to serve on an additional committee
in what conference members would term a violation of the
Republican Conference rule.) And if that Member served while in
the minority in the House, he or she might get to chair a
committee for only 2 years. Most agree that the
responsibilities of a ranking member are quite different than
those afforded a chair. For example, why are the Appropriations
Committee and the Ways and Means Committee not subject to term
limitations? Should those committee chairs be treated the same
as the chair of the Small Business Committee, a panel with a
comparatively smaller portfolio? What about the Agriculture
Committee since, with term limitations, it is possible to
control the agenda of two farm bills? Of course, prior to term
limits it was possible to chair the Agriculture Committee, or
any other panel, for decades.
In 2005, the House agreed to its first exception to term
limits by allowing the chair of the Rules Committee to be
exempt from the three-term limit.\36\ Rather than grant the
chair at that time a waiver, the House rules were amended to
make the Rules Committee chair not subject to the limitation.
In the previous Congress, the term limitation had been removed
for the Speaker of the House. The term limit rule for the
Speaker was instituted when Newt Gingrich became the leader of
the 104th House (1995-1997).
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\36\ In the 108th Congress, a waiver was granted to the chair of
the Intelligence Committee to serve an additional term. House rules at
that time prohibited a Member from chairing the Intelligence Committee
for more than two Congresses or being a member of the committee for
more than three Congresses.
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The chairmanship and ranking minority member of the House
Budget Committee also underwent changes to the term limit rule.
In the 101st Congress, a minority member who had served for
three terms was allowed to serve an additional term as ranking
minority member. In the 102d Congress, the rule was amended to
extend the waiver of the tenure restrictions for the ranking
minority member. In the 103d Congress, the provision related to
the ranking minority member was stricken as obsolete. In the
104th Congress, an exception was made for an individual Member
who had served as chair or ranking minority member during a
fourth Congress--the Member could serve in either capacity
during a fifth Congress, so long as he or she would not exceed
two consecutive terms as chair or ranking minority member. The
tenure limitation was suspended during the 106th Congress. In
the 108th Congress, the tenure limitation for the chair and
ranking minority member was replaced with a provision
subjecting only the chair to the overall tenure limitation
applicable to all other standing committee chairs.
Party Leadership
``The influence of the party leadership on the legislative
committees . . . is suggestive, not coercive, informal, not
official, tactful, not dictatorial.'' \37\ The strength and
powers of party leaders have changed over time, usually related
to shifts between committee government and party government,
with a few periods of balance between committee and party
government or, in some rare periods, shared power.
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\37\ U.S. Congress, House Committee on House Administration,
History of the United States House of Representatives, prepared by
George B. Galloway, 89th Cong., 1st sess., 1965, H. Doc. 250
(Washington, DC: GPO, 1965), p. 105.
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Party leaders' influence on the committee system is
formally limited to determining committee sizes and ratios
(generally within the purview of the majority party, although
negotiation does occur between Senate leaders) and determining
the makeup of the party entity (if not within the sole
authority of the party leader) that assigns committee members
and, in some cases, identifies the committee leader.
The party panels that recommend Members for assignments
have limited opportunity to assign Members in accordance with
upcoming policy issues and party needs. Instead, their emphasis
is on accommodating Members' requests. This reality increases
the possibilities that committees are unrepresentative of their
parent Chambers and, by extension, the needs of their districts
or States.
Over the past 30 years, more and more legislation is being
drafted by majority party leaders or a small cadre of Members
loyal to those leaders. Committee hearings can be staged to
make political points, and markups can be perfunctory, with the
outcome almost predetermined. Many longtime Congress watchers
can recall markups that continued for several days as Members
debated scores of amendments from both parties.
Final Thoughts
Many congressional scholars cite Woodrow Wilson's
Congressional Government as the seminal work regarding the
committee system. However, the text is often critical of the
committee system, at times preferring a stronger party system
and preferring party entities to committees to craft
legislation. Wilson criticized committees as too beholden to
lobbyists rather than their party leadership and, as such,
often incapable of preparing legislation that advanced the
majority party's agenda.
In the introduction to a recent edition of Wilson's book, a
professor and former House Republican staffer drew a comparison
between Wilson's advocacy of party rather than committee
government and former Speaker Newt Gingrich's approach to
leadership. ``Wilson's book reads almost like a field manual
for Gingrich's experiment in congressional party government.''
\38\ Speaker Gingrich appointed leadership task forces to
circumvent the standing committees. When the committees were
involved, they comprised chairs selected by the Speaker and
populated by Members of his choosing. The Contract with America
legislation was considered in the House without having had
committee consideration and without any amendments allowed. The
strengthened leadership at the expense of committees was not
limited to the Republicans. When the Democrats retook control
of the House in 2007, Speaker Nancy Pelosi brought the
Democrats ``First 100 Hours'' agenda to the floor, bypassing
committees and blocking amendments in the process.
---------------------------------------------------------------------------
\38\ William F. Connolly, Jr., Introduction to Woodrow Wilson,
Congressional Government: A Study in American Politics, 15th ed. (New
Brunswick, NJ: Transaction Publishers, 2002), p. ix.
---------------------------------------------------------------------------
Concerns over Senate committees have focused on majority
leaders' strategies and decisions. Some measures have been
considered whether they have had committee consideration or
not, and amendments have not been allowed as often as they once
were. If amendments are allowed, no special consideration is
given to the committee that could have considered the measure
initially. Majority leaders have used their priority of
recognition to ``fill the amendment tree,'' thereby denying
Senators of both parties, as well as committee leaders, an
opportunity to change legislation. For example, the majority
leader's control over the agenda has enabled him to deny a vote
to policies that might be difficult for vulnerable Senators up
for reelection to vote for but are supported by the President.
This is not a new phenomenon. In the 107th Congress (2001-
2003), for example, then-Majority Leader Tom Daschle brought an
energy bill directly to the Senate floor, bypassing the Senate
Energy and Natural Resources Committee, which contained a
coalition of Republicans and conservative Democrats willing to
approve oil development in the Arctic National Wildlife Refuge,
something Daschle did not want to happen.
Minority Leader Mitch McConnell has stated that if the
Republicans gain control of the Senate, they will return to
regular order. Does that mean committee government rather than
party government? Does that mean ratios reflecting party
strength across all committees? Does that mean full and open
floor debate with a promise to fill the amendment tree only in
rare circumstances? Only time will tell if regular order is a
promise that any majority leader can keep.
It seems evident over the last 20 years or so that party
leaders have become frustrated with rank-and-file Members, that
rank-and-file Members have become frustrated with committee
leaders, and committee leaders have become frustrated with
party leaders. It is clear that tension exists between the
Chambers, especially when there is split party control--whether
between the Chambers or between the legislative and executive
branches. Such tension and frustration often leads to blaming
``the system,'' whether that system reflects a strong committee
system or strong party leadership. The issue is how to
structure or use the committee system and how to devise a
method of assigning Members to committees that addresses
concerns about the committee system. An assignment system
should arguably also preserve the benefits of long committee
tenure, such as the issue expertise and institutional memory
that Members accrue.
The Bipartisan Policy Center held a series of roundtables
in 2011 to discuss the committee system. The discussion
centered on the current political climate, which most
participants and the public, according to most opinion polls,
agree is toxic. Most roundtable participants agreed that the
political climate could not and should not be addressed by
structural or procedural changes. They agreed that it could be
changed only by willingness among Members and party leaders to
alter their behavior and by constituents demanding a change in
behavior. However, it is worth considering whether Members take
on too much--introducing too many measures, seeking too many
committee and subcommittee assignments, offering too many
amendments, and holding too many hearings. All of this
legislative activity increases workload. Perhaps the
congressional system, whatever the type, can handle the
workload, but the real question may be: Should it have to? The
problem, assuming there truly is one, may not be systemic but
rather one of self-discipline among Members. If that is indeed
the case, any change might not lessen the burden on Members and
Congress but just redirect or aggravate an already contentious
lawmaking process.
=======================================================================
IV. POLICYMAKING CASE STUDIES
=======================================================================
Congress and Financial Crises
Edward V. Murphy
Specialist in Financial Economics
and
N. Eric Weiss
Specialist in Financial Economics
----------
The four case studies of congressional response during
financial crises described in this report (events from
the 1840s and the 1890s, as well as the Great
Depression and the 2008 financial crisis) illustrate
key characteristics of the policymaking process. Most
importantly, when financial crises happen, Congress'
hands are neither tied nor forced by policies and
institutions put in place by previous Congresses. In
the 2008 example, Congress proves able to pass far-
reaching legislation, even though significant automatic
response mechanisms like the Federal Reserve were
already in place. Many of the temporary programs and
policies adopted in response to the mortgage crisis had
analogous temporary measures during prior crises.
Introduction
In September 2008, the Secretary of the Treasury and the
chairman of the Federal Reserve asked Congress for $700 billion
to combat the financial crisis, asserting that the economy
would collapse if Congress failed to act. Following the crisis,
Congress passed legislation that granted powers to financial
regulatory agencies intended to enable them to handle future
crises without a similar request being made to Congress. The
law included provisions designed to end market perceptions of
too-big-to-fail (TBTF)--i.e., that because everyone knows that
the negative repercussions of a firm's failure are not
tolerable, the government must provide financial assistance to
the firm if it gets in trouble.
This report analyzes Congress during a financial crisis,
with special emphasis on whether the existing regulatory
framework (passed by a previous Congress) either ties Congress'
hands or forces congressional action. Case studies of four
financial crises--with examples of both congressional action
and inaction--illustrate congressional discretion to change the
rules of the game during financial crises. Because people often
want temporary suspensions of the rules of the game during a
crisis, preexisting rules are unlikely to be effective at
either tying Congress' hands or forcing congressional action.
This is a report about economic crisis response, not crisis
prevention. Crisis prevention is relevant only to the extent
that it is an integral part of the rules that exist prior to
the start of whatever crisis Congress finds itself in. During
an economic crisis, policymakers consider temporarily
suspending some laws and creating one-time assistance programs.
But even if Congress does nothing in response, the existing
laws and programs continue to govern the outcome--in contrast
to some other issues in which Congress must take periodic
action to preserve the status quo (budgets and program
reauthorizations, for example).
People sometimes want one set of rules for standard
conditions but a different set of rules for unusual conditions.
For example, after Hurricanes Katrina and Rita wiped out
communications and records in several States, some agencies
temporarily suspended certain paperwork requirements related to
refinancing mortgages.\1\ A financial crisis often has calls
for similar suspensions of existing rules and policies or pleas
for temporary one-time assistance to targeted groups. This
report will examine economic policies considered by Congress
during the containment phase of financial crises.
---------------------------------------------------------------------------
\1\ U.S. Department of Housing and Urban Development, Public and
Indian Housing Hurricane Recovery Resources, at http://portal.hud.gov/
hudportal/HUD?src=/program_offices/public_ indian_housing/publications/
hurricane.
---------------------------------------------------------------------------
At the time a financial crisis begins, most rules and
agency authorities are a legacy of previous legislation. In
constructing the economic rules of the game and authorizing
agencies that administer economic policy, Congress and the
President have typically consulted the leading economists of
the day.\2\ Furthermore, many of the economic agencies were
created following earlier financial crises and staffed by
professional economists and lawyers. Yet during a financial
crisis, people may still see some of the features of the
existing economic policy framework as a hindrance (perhaps
temporarily) rather than a help.
---------------------------------------------------------------------------
\2\ For example, Congress established a National Monetary
Commission following the panic of 1907. The commission was led by and
staffed with prominent economists. The Federal Reserve Act followed
many of the commission's recommendations. Congress created commissions
to investigate the causes of the Great Depression and the 2007-2008
recession.
---------------------------------------------------------------------------
It is no criticism of economists to point out that despite
their input at the rule-setting stage and in the administration
of existing rules, bad economic events still happen. This
report is not about identifying the correct set of economic
policies according to current experts, because those rules
(whatever they are at any given point in time) will most likely
be subject to calls for suspension, alteration, or fundamental
change. This report examines what economic policy issues have
regularly come before Congress during financial panics,
recessions, and depressions. This report does not address
whether Congress could in various instances have done better.
Congress and Economic Policy
Title I of the Constitution grants Congress a number of
powers related to the economy: \3\
---------------------------------------------------------------------------
\3\ The report will at times refer to congressional powers pursuant
to Title I of the Constitution. Such powers depend upon actions by the
executive and judicial branch as appropriate.
---------------------------------------------------------------------------
To spend money, levy taxes, and borrow funds,
To define currency and regulate its value,
To regulate banks,
To establish rules for bankruptcy, and
To regulate interstate commerce.
The first two powers loosely correspond to macroeconomic
policies (fiscal policy and monetary policy). The others are
microeconomic policies that some believe can have macroeconomic
effects (financial market intervention, debt restructuring, and
industrial policy).
At any moment in time, the economy operates within a legal
framework created by Congress, including rules and policies
adopted by agencies to which Congress has delegated authority.
For example, in the area of monetary policy, Congress has
sometimes legislated the value of currency in terms of gold but
has delegated to the Federal Reserve authority to affect the
supply of obligations circulating as gold-backed currency. At
other times, Congress has set the value of a dollar in terms of
either gold or silver and has not delegated authority to
regulate the supply of related obligations to any agency.
Currently, there is no established value of the dollar, and
Congress has delegated to the Federal Reserve authority to
issue the notes circulating as dollars. In policy areas where
Congress has delegated some of its authority, Congress oversees
the actions of the agencies and can revise the delegated
authority.
An economic emergency typically results in calls for
changes in the existing economic policy framework. People may
wish Congress to facilitate expansion of the money supply
(``easy money''), to restore ``sound money,'' or either to
grant further discretion to the monetary authority or to clip
its wings. People may call upon Congress to increase Federal
spending and cut taxes, or Congress may be called upon to
restore fiscal discipline and protect the creditworthiness of
the United States. Congress may be asked to rescue banks,
suspend banking operations, or facilitate the liquidation of
distressed banks. Congress may be called upon to enact a
mortgage moratorium, delay debt collection, or strengthen the
ability of creditors to collect debts owed. Congress may be
called upon to provide financial support to specific industries
or to regulate some industries more stringently.
Even if Congress does not change the fundamental economic
rules, it still oversees the effectiveness of existing programs
to address the economy during a financial crisis. For example,
in addition to general monetary policy, the Federal Reserve is
empowered to provide emergency lending to eligible borrowers
based upon good collateral. During the crisis of 2008, the
Federal Reserve established temporary programs to provide loans
using a wider variety of collateral and to a wider variety of
potential borrowers than it allows during normal times.
Congress held numerous hearings in 2008 in which the Federal
Reserve and other agencies were required to report on their
activities, including the Federal Reserve's temporary liquidity
programs.
Economic Hardship and Economic Crisis
It may be useful to distinguish recessions and depressions
from financial crises. A common quip is that a recession is
when someone else loses his or her job, but a depression is
when I lose my own job. A recession occurs when a broad range
of economic indicators contract.\4\ A period of economic
hardship may include more than one technical recession.\5\ A
second downturn may occur before a nascent recovery can return
an economy to full capacity. The United States has experienced
several periods of high unemployment that have spanned multiple
recessions and recoveries. The Great Depression is commonly
dated from 1929 to 1941, even though the period 1933-1937 was
technically a recovery, not a recession. Similarly, both the
depression of the 1890s and the hardship of the early 1980s
included double-dip recessions before full employment could be
restored.\6\ The recession that began in December 2007
officially ended in June 2009, even though unemployment has
remained above full employment for more than 5 years, leading
to the moniker the Great Recession.\7\
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\4\ The National Bureau of Economic Research (NBER) is considered
the official arbiter of the dates of recessions and expansions. NBER
tracks a variety of economic indicators and identifies peaks and
troughs in business activity. Recessions last from a peak down to a
trough. However, to the common person, the economic hardship associated
with being near a trough may feel like a depression, even though it is
technically not a recession. Dates and related information can be found
at http://www.nber.org/cycles/cyclesmain.html.
\5\ National Bureau of Economic Research, U.S. Business Cycle
Expansions and Contractions, http://www.nber.org/cycles/
cyclesmain.html.
\6\ Douglas Steeples and David Whitten, Democracy in Desperation:
The Depression of 1893 (Westport, CT: Greenwood Press, 1998).
\7\ See, e.g., Stanley Fischer, ``The Great Recession: Moving
Ahead,'' at http://www.federal reserve.gov/newsevents/speech/
fischer20140811a.htm.
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A financial crisis is a widespread financial disruption
characterized by falling asset prices, bankruptcies,
insolvencies, and illiquidity. It may or may not precede or
accompany a recession or depression. A financial crisis often
includes sharp declines in asset prices (e.g., Dutch tulip
bulbs in 1637), the sudden collapse of security prices (e.g.,
common stock), widespread suspensions of payments by key
intermediaries (e.g., depository banks), or the failure of key
providers of financial services. The uncertainty and chaos
created during these sudden financial crises are called a
panic. Some panics are followed by deep recessions (2008) or
even depressions (1893, 1933). Others are not (1987, 1888).\8\
---------------------------------------------------------------------------
\8\ Bradford J. DeLong and Lawrence H. Summers, ``The Changing
Cyclical Variability of Economic Activity in the United States,'' in
The American Business Cycle: Continuity and Change, ed. R.J. Gordon
(Chicago: University of Chicago Press, 1986), pp. 679-719.
---------------------------------------------------------------------------
Periodic economic hardship has been common in U.S. history.
There were extended periods of economic hardship in the late
1830s and early 1840s, the 1870s, and the 1890s. Since the
establishment of the Federal Reserve in 1914, extended periods
of economic weakness occurred in the 1930s, the late 1970s/
early 1980s, and the 2000s. Notable market crashes, financial
panics, or bank runs include those of 1837, 1839, 1857, 1873,
1893, 1907, 1929, 1931, 1933, 1987, and 2008.\9\
---------------------------------------------------------------------------
\9\ Michael D. Bordo et al., ``Is the Crisis Problem Growing More
Severe?'' Economic Policy, vol. 16 (August 2001), pp. 51-82. The dates
and number of banking panics in the United States are sensitive to the
definition used. Contemporaries often called a financial disruption a
panic. Various attempts to identify panic dates with objective measures
of asset prices have generally confirmed crises in 1837, 1839, 1857,
1873, 1893, 1907, and 1930. Other dates often depend on the measure
used. See Gary Gorton, ``Banking Panics and Business Cycles,'' Oxford
Economic Papers, vol. 40 (1988), pp. 751-781.
---------------------------------------------------------------------------
During a financial panic, no one can know for certain if it
will be followed by a recession or depression or have no
effect. The credibility of experts, such as prominent
economists, is likely to be tarnished at the same time that the
panic hits, in part because it is likely that many of these
experts contributed to the feeling of confidence in existing
tools prior to the crisis. For example, many economists at the
International Monetary Fund, the Federal Reserve, academia, and
elsewhere believed that macroeconomic advances had created a
Great Moderation among developed economies, perhaps
contributing to overconfidence following the liquidity crunch
that began in August 2007.\10\ Similar confidence in
macroeconomic tools was expressed following Federal Reserve
responses to recessions in the 1920s.\11\ Following the stock
market crash of 1929, Irving Fisher, one of the greatest
American economists of his generation, famously proclaimed the
economy sound, damaging his reputation and personal fortune in
the process.\12\ The point is not that economists are fallible
like anyone else but that, in some cases, market prices are
moving differently than experts predict or explain--which might
be why there is a panic--which tends to diminish the
credibility of these experts when they testify before or advise
Congress.
---------------------------------------------------------------------------
\10\ For an example of a central bank official noting reduced
macroeconomic volatility, see Ben S. Bernanke, ``The Great
Moderation,'' at http://www.federalreserve.gov/boarddocs/speeches/2004/
20040220/.
\11\ For an introduction to the role of expectations in the
macroeconomy, see Sylvain Leduc, ``Confidence and the Business Cycle,''
FRBSF Economic Letter, November 2010, at http://www. frbsf.org/
economic-research/publications/economic-letter/2010/november/
confidence-business- cycle/.
\12\ Robert Loring Allen, Irving Fisher: A Biography (Cambridge,
MA: Blackwell, 1993).
---------------------------------------------------------------------------
The next section of this report connects congressional
authorities to economic policies during financial crises. For
each policy area, the section describes what it is in economic
terms and briefly provides congressional context.
Congressional Policy Tools
Monetary Policy
Economists define money as relatively safe assets that
people rely upon to make payments or to hold as a short-term
investment, i.e., liquidity.\13\ Monetary policy refers to
actions taken to alter the money supply with the intent of
influencing macroeconomic conditions, including real output,
unemployment, and inflation.\14\ Congress has affected the
money supply by redefining money to include a broader or
narrower array of commodities (or none at all), revising or
abandoning the ratio of current commodities to the dollar,
creating obligations that others can use as collateral for
issuing moneylike instruments, and regulating the ability of
banks to maintain moneylike deposit or similar accounts on
behalf of customers or investors. Congress delegated much of
day-to-day monetary policy to the Federal Reserve. Currently,
paper money is issued by the Federal Reserve.
---------------------------------------------------------------------------
\13\ Board of Governors of the Federal Reserve System, What Is the
Money Supply? Is It Important? at http://www.federalreserve.gov/faqs/
money_12845.htm.
\14\ David Lindsey and Henry Wallich, Money: New Palgrave
Dictionary of Economics (New York: Norton, 1987), pp. 229-243.
---------------------------------------------------------------------------
For some economists, monetary conditions are the heart of
most financial crises. In their research on U.S. monetary
history, Milton Friedman and Anna J. Schwartz noted that what
distinguished depressions from recessions was the magnitude of
the contraction of the money supply.\15\ More recently,
scholars have emphasized that during the Great Depression of
the 1930s, economies remained depressed as long as they had
tight money policies and adhered to the gold standard but that
recovery generally accelerated when countries abandoned gold
and ``reflated.'' The United States devalued the dollar in
terms of gold in 1933, and many economists believe that
devaluation contributed to recovery.
---------------------------------------------------------------------------
\15\ Milton Friedman and Anna Jacobson Schwartz, A Monetary History
of the United States: 1867-1960 (Princeton, NJ: Princeton University
Press, 1963).
---------------------------------------------------------------------------
Unanticipated deflation can increase the real burden of
debts. Such burdens may not be fully offset by gains to
creditors if there are widespread defaults. Increasing the
money supply may alleviate deflation. But one should not assume
that these economists believe that only the absolute quantity
of money matters. Rather, as economist Michael Bordo put it,
``it is not monetary contraction but the public's apprehension
that the availability of the means of payment is in doubt. That
is the essence of the monetarist position.'' \16\ Furthermore,
there may be conditions in which monetary policy becomes
ineffective.
---------------------------------------------------------------------------
\16\ Michael D. Bordo, ``Discussion: The Panic of 1873 and
Financial Market Volatility and Panics before 1914,'' in Crashes and
Panics: Lessons from History, ed. Eugene N. White (Homewood, IL: Irwin,
1990), p. 128.
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Fiscal Policy
Fiscal policy is the government's actions to influence the
macroeconomy by adjusting government spending and revenue.\17\
In particular, when there is underutilized productive capacity,
such as in a recession, government can stimulate the economy by
increasing budget deficits through spending more or taxing
less.\18\ Fiscal policy has an automatic component because bad
economic conditions reduce tax receipts and trigger increased
spending on some programs even if Congress takes no action. For
example, during the Great Depression, the largest contributor
to Federal deficits was the automatic drop in revenue, not any
action pursued by policymakers. In the view of modern
economists, even the drop in revenues during the Great
Depression was too small relative to the economy to have any
meaningful effect.
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\17\ The most general constitutional provisions authorize Congress
to tax, borrow, and spend (Article I, Section 8, Clauses 1 and 2, and
Section 9, Clause 7).
\18\ CRS Report RL33657, Running Deficits: Positives and Pitfalls,
by D. Andrew Austin, and U.S. Congressional Budget Office, The Long-
Term Budget Outlook: July 2014, http://www.cbo.gov/sites/default/files/
cbofiles/attachments/45471-Long-TermBudgetOutlook.pdf.
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Federalism affects American fiscal policy. During some
parts of the 19th century, State borrowing for development
projects was expansionary, but fiscal surpluses at the Federal
level were contractionary. Now that balanced budget
requirements are the norm for States, expansionary Federal
fiscal policy may be offset by tight State policies.\19\
Alternatively, Federal grants to States may help States avoid
contractionary policies.
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\19\ Leslie McGranahan and Jacob Berman, ``Measuring Fiscal
Impetus: The Great Recession,'' Economic Perspectives (Third Quarter
2014), pp. 67-79, at http://www.chicagofed.org/digital_ assets/
publications/economic_perspectives/2014/
3Q2014_part1_mcgranahan_berman.pdf.
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Bankruptcy Law and Debt Restructuring
Financial crises and depressions typically include
widespread debt defaults and declines in asset prices.
Policymakers may wish to provide relief to people facing
foreclosure and eviction. In addition to compassion for
individuals, bankruptcy policy may have macroeconomic effects.
Some economists believe that defaulting on debt can result in a
balance sheet recession in which distressed households cut
consumption, firms cut investment, and local governments cut
spending in order to repair balance sheets damaged by declines
in the price of assets.\20\ As each sector tries to reduce its
net debt (de-leverage), total economic spending declines,
potentially magnifying the economic contraction.\21\
---------------------------------------------------------------------------
\20\ Marcus Miller and Joseph Stiglitz, ``Leverage and Asset
Bubbles: Averting Armageddon with Chapter 11?,'' Economic Journal, vol.
120, no. 544 (May 2005), pp. 500-518.
\21\ Enrique G. Mendoza, ``Lessons from the Debt-Deflation Theory
of Sudden Stops,'' American Economic Review, vol. 96, no. 2, (May
2006), pp. 411-416.
---------------------------------------------------------------------------
Bankruptcy laws may affect balance sheet recessions and the
macroeconomy.\22\ People who are in default are often cut off
from further credit because they are considered riskier
borrowers. If so, then monetary policies that lower interest
rates may not stimulate their consumption or investment. People
who hold bonds similar to those defaulting may find it
difficult to use their bonds as collateral for additional funds
even if the specific bonds they are holding are not currently
in default. Bankruptcy law may affect the speed in which
distressed debt is resolved. Bankruptcy law may affect whether
debtors who have defaulted get a fresh start and may begin
spending on new produced goods and services if they have
earnings--or if they would be required to pay old debts
instead.
---------------------------------------------------------------------------
\22\ David Smith and Per Stromberg, ``Maximizing the Value of
Distressed Assets: Bankruptcy Law and the Efficient Reorganization of
Firms,'' Systemic Financial Crises, ed. Patrick Honohan and Luc Laeven
(Cambridge: Cambridge University Press, 2005).
---------------------------------------------------------------------------
Banking Regulation and Financial Market Intervention
Financial intervention refers to steps taken to stabilize
the function of banks, which may include rescuing financial
institutions from failure. Banks are the hubs of the payment
system, meaning that many retail and commercial transactions
are conducted by communications among deposit-taking financial
institutions. The fractional reserve structure of depository
institutions means that they also affect the money supply. When
banks come under stress, they reduce their own lending, which
reduces the money supply. Unfortunately, in the aggregate, this
contraction in lending may come exactly when bank customers
most need additional short-term financing.\23\ Banking
regulation and financial market intervention refer to steps
taken to ensure the continued functioning of the payment system
and lending systems during a financial crisis and depression.
---------------------------------------------------------------------------
\23\ Douglas Diamond and Philip Dybvig, ``Bank Runs, Deposit
Insurance, and Liquidity,'' Quarterly Review (winter 2000), at http://
www.minneapolisfed.org/research/qr/qr2411.pdf.
---------------------------------------------------------------------------
Financial crises are challenging for banks and other
financial intermediaries.\24\ If debtors are defaulting, then
their lenders have an interruption in cash flow. If the banks
and other intermediaries that provided the loans hold assets
that are difficult to liquidate or became difficult to sell
because of the crisis, then they will have difficulty honoring
their own obligations. Since deposit accounts are bank
obligations, financial crises often put stress on the
depository system. Similar stress can be put on other
transaction services provided by nondepositories. If people
lose confidence in banks, they may withdraw their funds,
endangering the health of the banks and potentially reducing
the money supply by a multiple of the withdrawn funds.
---------------------------------------------------------------------------
\24\ Jean Tirole, Illiquidity and All Its Friends, Bank for
International Settlements, Working Papers No. 303, March 2010, at
http://www.bis.org/publ/work303.htm.
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Congressional Policies During Selected Financial Crises
This section provides illustrative examples of challenges
to the economic rules of the game during selected financial
crises and depressions. A discussion of multiple policy areas
is provided only for the Great Depression and the Great
Recession. Selected cases are presented to illustrate the
policy issues repeatedly brought before Congress during times
of economic stress. Congress retains the ability to change the
fundamental rules of the economic game and has been called to
do so during financial crises. Whether Congress might have made
a different decision in light of current economic thought is
not the focus of this report.
The history is not provided to reveal a steady march toward
economic enlightenment or a painstaking erection of
macroeconomic safeguards; rather, the history demonstrates that
Congress retains the authority to suspend or fundamentally
change the economic rules of the game and will likely be called
upon to do so in times of crisis, and its actions or inactions
may ameliorate or prolong economic turmoil. Powers delegated to
the Federal Reserve and other agencies can be expanded,
amended, or rescinded. Similarly, whatever monetary standard
Congress had established prior to the crisis can be
strengthened, supplemented, or abandoned. If congressional
deliberations create uncertainty and concern over future
actions, the debate itself may contribute to temporary
instability regardless of the ultimate vote.
The Depression of the 1840s
economic and institutional context
Monetary policy, fiscal policy, the structure of the
banking system, and bankruptcy law were all major issues during
the 1840s, but this section will focus primarily on
congressional influence over fiscal federalism. This case study
illustrates continued congressional discretion in the face of
TBTF. Congress faced an economic crisis in which State
governments were defaulting on some of their debts. Congress
considered intervening on behalf of State debt and established
a commission to study the issue in great detail. Despite the
commission's recommendation that State governments be assisted,
Congress chose not to do so. Not only did Congress not pass
financial assistance to the States, but it did pass legislation
designed to prevent the executive branch from using the treaty
process to assist foreign holders of State debt. The TBTF
status of the States did not force Congress' hands.
After a boom and bust in canal and railroad building, there
were financial panics in 1837 and 1839. Economic problems
persisted long after the panics.\25\ Land and agricultural
prices declined, making it difficult for farmers to repay their
debts. The failure of the second Bank of the United States in
1838 disrupted the payment system because there was no central
settlement and clearing system for the country as a whole.
State governments experienced significant financial problems,
because in many cases the States had issued bonds and created
development banks to fund the failed canals and railroads.\26\
By the 1840s, nine States had suspended payment on their debts.
Some European creditors had greater doubts about the viability
of Federal debt; others wanted the Federal Government to assume
the State debts, as had been done with Revolutionary War-era
debts.\27\
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\25\ Peter Temin, The Jacksonian Economy (New York: Norton, 1969).
\26\ John Joseph Wallis, The Depression of 1839 to 1843: States,
Debts, Banks, University of Maryland, Working Paper, 2005.
\27\ Jay Sexton, Debtor Diplomacy: Finance and American Foreign
Relations in the Civil War Era, 1837-1873 (Oxford: Clarendon, 2005).
---------------------------------------------------------------------------
The early 1840s had an interesting political
environment.\28\ The congressional majority often opposed
President John Tyler, even though both were nominally of the
same party. Tyler was not originally a Whig but had been added
to the party ticket to broaden support for General William
Henry Harrison. When President Harrison died shortly after
inauguration, some members of Tyler's old party considered him
a turncoat, while some in his new party referred to him as
``His Accidency.'' At one point, his entire Cabinet except one
resigned, and the House of Representatives began impeachment
proceedings because of his use of the veto power.
---------------------------------------------------------------------------
\28\ Frank Freidel and Hugh Sidey, The Presidents of the United
States of America, White House Historical Association, 2006, summarized
at http://www.whitehouse.gov/about/presidents/johntyler.
---------------------------------------------------------------------------
congressional deliberation, action, and oversight
The depression of the 1840s illustrates the effect of
federalism on fiscal policy. Debt defaults and suspensions by
State governments were of concern to European investors, many
of whom also funded Federal debt or were members of countries
with other outstanding issues with the United States.\29\
Congressional documents indicate that some policymakers were
concerned that State defaults could hurt the credit standing of
the national government.
---------------------------------------------------------------------------
\29\ William English, ``Understanding the Cost of Sovereign
Default: American State Debt in the 1840s,'' American Economic Review
(March 1996), pp. 259-275.
---------------------------------------------------------------------------
Although verbatim records of congressional debates were not
kept at this time, there is evidence that the debate was
vigorous. One faction of Congress favored Federal assistance to
State governments and pointed out that Alexander Hamilton had
orchestrated the assumption of State debts by the Federal
Government. They also argued that paying the debts was good
foreign policy. Another faction of Congress did not want
solvent States to have to help pay the debts of States that had
overbuilt during the canal and railroad boom.
Congress authorized a major study of the State debt issue.
The study, headed by Congressman William Cost-Johnson, was an
indepth investigation into the causes and implications of
economic distress in the States. The Johnson report recommended
that Congress provide $200 million in aid to the States, a
large sum at the time. Ultimately, Congress did not provide
direct financial assistance to the States. With the Federal
Government funded by tariffs, and State access to foreign
credit markets impaired, fiscal policy was not used to address
the depression of the 1840s.
Although Congress has the power of the purse, some were
concerned that the President might use the treaty process to
assist the States.\30\ Many of the State debts were held by
British creditors. Secretary of State Daniel Webster, the only
Cabinet member not to resign, was negotiating with the British
over a number of outstanding issues. British negotiator
Ashburton was a financier with direct interest in State
debts.\31\ The Senate passed a resolution to require the
Secretary of State to provide assurance that State debts would
not be included in negotiations with the British. The resulting
Webster-Ashburton Treaty did not commit the Federal Government
to assume or support State borrowing.
---------------------------------------------------------------------------
\30\ Sexton, Debtor Diplomacy.
\31\ Ibid.
---------------------------------------------------------------------------
Other policy issues also came before Congress during the
crisis. Congress considered but rejected the proposal to
charter a third Bank of the United States. Although some
regional payment systems evolved, banknotes from different
parts of the country could exchange at a discount. Congress
enacted a national bankruptcy law in 1841 to coordinate
resolution of private debts and provide a fresh start for
eligible borrowers. The bankruptcy law was repealed in 1843,
making it effectively a temporary measure to address the
crisis.\32\
---------------------------------------------------------------------------
\32\ The Federal Judicial Center maintains a brief history of the
bankruptcy courts at http://www.fjc.gov/history/home.nsf/page/
courts_special_bank.html.
---------------------------------------------------------------------------
The Panic of 1893 and the Depression of the 1890s
economic and institutional context
Although fiscal policy, banking regulation, and bankruptcy
were issues in the 1890s, this section will focus on
deliberations related to monetary policy. This case study
illustrates Congress' continued discretion over monetary policy
even when some might think commitment to the gold standard tied
Congress' hands. Just as the case study for the 1840s showed
that Congress considered changing fiscal policy but chose not
to, the case study for the 1890s shows that Congress considered
changing monetary policy but chose not to. Yet even though
Congress did not change the monetary standard during the 1890s,
the deliberations themselves may have had real effects.
Several of America's major trading partners entered
recessions in the early 1890s, but the United States was not
affected until after the panic of 1893, which initiated a
period of economic slack that lasted until 1897.\33\ Although
exact unemployment statistics are not available, what can be
said with some confidence is that unemployment was below 5
percent during 1890-1892, began rising in 1893, then remained
above 10 percent between 1894 and 1898.\34\ Perhaps because the
early stages of the recession were international in scope,
international capital flows did not provide relief.
---------------------------------------------------------------------------
\33\ The NBER identifies two different recessions during the
depression of the 1890s. National Bureau of Economic Research, U.S.
Business Cycle Expansions and Contractions, at http://www.nber.org/
cycles.html.
\34\ Christina Romer, ``Spurious Volatility in Historical
Unemployment Data,'' Journal of Political Economy, vol. 94, no. 1
(February 1986), pp. 1-37.
---------------------------------------------------------------------------
At the time, the United States was part of the
international gold standard. Because the dollar was defined in
terms of gold and the pound and other currencies were defined
in terms of gold, the result was a system of fixed exchange
rates for participating countries. In addition to tying the
dollar to a fixed ratio of gold (and excluding silver and other
metals), the United States also committed to converting dollars
to gold for certain international transactions. Because of the
economic stress during the financial crisis and depression,
Treasury borrowed four times during 1893-1897 in order to
maintain the monetary gold reserves required under the
international gold standard.\35\
---------------------------------------------------------------------------
\35\ David Whitten, ``Depression of 1893,'' EH Net Encyclopedia, at
http://eh.net/encyclopedia/the-depression-of-1893/.
---------------------------------------------------------------------------
American participation in the gold standard (1873-1933)
created rules for domestic and international monetary
policy.\36\ During the first part of the gold standard era
(1873-1914), the notes of private banks circulated as money,
and the private banks promised to convert the currency on
demand. During the second part (1914-1933), the Federal Reserve
took over the role of note issuer and assumed the associated
obligations.
---------------------------------------------------------------------------
\36\ For a brief history of the rules of the gold standard, see
Barry Eichengreen, ``Globalizing Capital: A History of the
International Monetary System,'' Journal of Comparative Economics, vol.
26, no. 3 (September 1998), pp. 589-591.
---------------------------------------------------------------------------
Joining the gold standard had required congressional
action.\37\ Various Mint Acts from 1792 onward defined the
value of the dollar in terms of both gold and silver. At any
moment in time, the proportion of circulating coins that were
gold or silver depended on the relative price of the two
metals. During times in which silver coins did not circulate,
the de facto backing of the currency was effectively gold, even
if the legal status of silver coins had not yet been altered.
In 1873, during a time in which silver coins did not circulate,
the Mint Act of that year did not provide for the coinage of
silver. While this was a change in its legal status, it was not
a change in its de facto status in 1873. Populists would later
call the 1873 Mint Act the ``Crime of '73.'' \38\
---------------------------------------------------------------------------
\37\ For a legal history, see Edwin Vieira, Jr., ``The Forgotten
Role of the Constitution in Monetary Law,'' Texas Review of Law and
Politics, vol. 77, no. 2 (1997-1998), pp.77-128, at http://
www.fame.org/PDF/viera_Texas_law.pdf.
\38\ Friedman and Schwartz, Monetary History, pp. 113-116.
---------------------------------------------------------------------------
Some might argue that participation in the gold standard
tied policymakers' hands. However, Congress had several avenues
to change monetary policy. First, Congress could have amended
the Mint Act to coin silver or other metals or to have fiat
currency (unbacked). Second, Congress could have taken the
extreme step of denying Treasury the ability to borrow to meet
the commitments of the international gold standard. Third,
Congress could have announced intentions to remain on the gold
standard in the long run but suspended convertibility
temporarily (as was sometimes done during wars). Fourth,
Federal bank regulators in the Office of the Comptroller of the
Currency (OCC) could have used their bank regulatory powers to
affect bank-created money and employ their influence with the
banks' clearinghouses to affect the liquidity banks needed for
interbank transactions.
congressional deliberation, action, and oversight
Opponents of the gold standard organized a national
movement that resulted in the Populist Party. The Populist
movement's challenge to ``sound money'' policies made the U.S.
commitment to gold anything but certain at the time, perhaps
best exemplified by Congressman William Jennings Bryan's famous
``Cross of Gold'' speech. Bryan and the Populists argued that
tight monetary policy exacerbated the depression, in part
because deflation increased the real burden of debts. In the
Populists' view, indebted farmers were being ``crucified on a
cross of gold'' as real interest rates rose and commodity
prices fell.
Populists and sympathizers in the Republican and Democratic
Parties called upon Congress to expand the money supply in
order to combat deflation and the depression.\39\ Congress
could affect the supply of money even under the gold standard.
For example, government silver purchases could expand the money
supply by exchanging a safe financial asset that could be used
as loan collateral (the silver certificate) for a commodity
(silver) that could not.\40\ Opponents of monetizing silver,
including Presidents Grover Cleveland and William McKinley,
argued that the United States should not leave the gold
standard unilaterally because it would destabilize the dollar
in international financial transactions, among other
concerns.\41\ President Cleveland took it a step further and
advocated repealing the Sherman Silver Purchase Act of 1890 to
support the gold standard. In 1893, Congress concurred and
repealed the act.
---------------------------------------------------------------------------
\39\ Lawrence Goodwyn, Democratic Promise: The Populist Movement in
America (New York: Oxford University Press, 1976).
\40\ Richard C.K. Burdekin and Marc D. Weidenmier, `` `Non-
Traditional' Open Market Operations: Lessons from FDR's Silver Purchase
Program,'' Claremont Institute for Economic Policy Studies, Working
Paper Series 2005-08, 2005, at http://www.claremontmckenna.edu/
rdschool/ papers/2005-08.pdf.
\41\ Friedman and Schwartz, Monetary History, p. 118.
---------------------------------------------------------------------------
Whether good policy or bad policy, the debates surrounding
the gold standard may themselves have been destabilizing. At
the time, economist John B. Clark argued that uncertainty
surrounding monetary discretion would contribute to debt binges
and financial instability.\42\ Some critics have argued that
the monetary uncertainty accompanying the political debates and
the prospects of a Bryan victory in the Presidential election
of 1896 contributed to the economic downturn of that year. They
point to the second recession, which occurred only in the
United States. The depression had been international until
then.\43\
---------------------------------------------------------------------------
\42\ John B. Clark, ``The After Effects of Free Coinage of
Silver,'' Political Science Quarterly, vol. 11, no. 3 (September 1896),
pp. 493-501.
\43\ Whitten, ``The Depression of 1893.''
---------------------------------------------------------------------------
Some modern economists are more sympathetic to Bryan's
monetary positions. Economist Hugh Rockoff characterizes
Bryan's ideas: ``Bryan's monetary thought was surprisingly
sophisticated and . . . on most issues his positions, in the
light of modern monetary theory, compare favorably with those
of his `sound money' opponents.'' \44\
---------------------------------------------------------------------------
\44\ Hugh Rockoff, ``The Wizard of Oz as a Monetary Allegory,''
Journal of Political Economy, vol. 98, no. 4 (August 1990), pp. 739-
760.
---------------------------------------------------------------------------
Congress considered changing the rules of the game. An
example of congressional deliberations can be found in a
December 16, 1897, hearing before the House Committee on
Banking and Currency.\45\ The committee debated a bill to
reform banking regulation and currency laws such that private
banknotes would continue to circulate as currency but would
have a guarantee from Treasury in the form of a national
redemption fund. The bill would have also required Treasury to
purchase silver as under the Silver Purchase Act of 1890.
According to the congressional testimony of Treasury Secretary
William Windom, the idea was to even more strongly commit to
the gold standard but to do so in a way that did not reduce the
national money supply.
---------------------------------------------------------------------------
\45\ U.S. Congress, House Committee on Banking and Currency,
Hearings and Arguments on Proposed Changes in the Currency System of
the United States, 55th Cong., 1897-1898 (Washington, DC: GPO, 1898).
---------------------------------------------------------------------------
Other congressional deliberations concerned more specific
features of the financial system. For example, some Congressmen
criticized Treasury borrowing to meet international
obligations. The Congressional Record documents them
complaining that the President was hiding profligate spending
and attributing it to the requirement to maintain gold
reserves. In modern terms, we might say they were pointing out
that money is fungible.
In the end, the United States abided by the rules of the
gold standard. However, doing so was by no means assured in the
case of the monetary base, because returning to the pre-1873
Mint Act was a viable alternative. Furthermore, the need to
borrow to meet international requirements of the gold standard
required continued congressional consent during the crisis.
Although this section focused on monetary policy, the other
three policy areas were also deliberated. Several State
governments were again in danger of defaulting on their debts.
Banking regulation was also an issue because obstacles to
interstate banking had led to western mortgage debt being
wrapped in securities called debentures and sold by trusts to
eastern banks and investors. When western debt defaults rose
during the 1890s, securities markets transmitted the distress
to eastern banks and other financial institutions.\46\ Congress
responded to distressed businesses by passing another
bankruptcy act. Unlike earlier temporary bankruptcy statutes in
1801 and 1841, this one was made permanent and is the
foundation of the current bankruptcy code.
---------------------------------------------------------------------------
\46\ Andrew M. Davis, U.S. Congress, Senate National Monetary
Commission, The National Banking System, 61st Cong., 2d sess., 582
(Washington: GPO, 1910-1911); and Kenneth A. Snowden, The Anatomy of a
Residential Mortgage Crisis: A Look Back to the 1930s, National Bureau
of Economic Research, July 2010, http://www.nber.org/papers/w16244.pdf.
---------------------------------------------------------------------------
Following another panic in 1907, Congress created the
National Monetary Commission to consider monetary reforms.\47\
The result was the Federal Reserve Act of 1913, whose purpose
was, in part, to foster monetary and banking stability by
creating a more elastic currency. In deliberating the Federal
Reserve Act, older Senators discussed the 1890s mortgage
debentures problems, and the original Federal Reserve Act
expressly included trusts in the definition of a bank and
allowed trusts to be members of the system.\48\
---------------------------------------------------------------------------
\47\ O.M.W. Sprague, U.S. Congress, Senate National Monetary
Commission, History of Crises under the National Banking System, 61st
Cong., 2d sess., Document 538 (Washington: GPO, 1910).
\48\ U.S. Congress, Senate Committee on Banking and Currency,
Hearings, H.R. 7837 (S. 2639), 63d Cong., 1st sess., September 2, 1913,
Document 232 (Washington: GPO, 1913).
---------------------------------------------------------------------------
The Great Depression
economic and institutional context
The Great Depression was an extended period (1929-1941) of
high unemployment and a variety of fluctuations including
financial shocks and a short, modest recovery. There had been a
boom period in the 1920s. The stock market crashed in 1929,
borrowers defaulted, banks failed, and industrial firms laid
off workers. Commodity prices collapsed, farm values declined,
and many farms went into foreclosure. Nonbank financial
institutions failed because they could not raise sufficient
funds by liquidating the securities they held as collateral
because of declines in financial markets. More than 12,000
banks failed.
In September and October 1929, the New York Stock Exchange
started a decline that continued until July 1932, when it had
fallen 89 percent from its high. It did not recover to the
September 1929 level until November 1954. Although the 1929
stock market crash may have signaled the beginning of the
Depression in the United States, economic contraction was
actually a worldwide event that had begun earlier in other
locations.
In 1933, the trough of the Great Depression, real gross
domestic product (GDP)--production of final goods and services
adjusted for inflation--was down 26.7 percent of its previous
peak in 1929. By way of comparison, the trough in the recent
recession was in 2009, when real GDP had declined by 3.1
percent from its peak. In the Great Depression, unemployment
peaked at 24.9 percent in 1933.\49\
---------------------------------------------------------------------------
\49\ For an indepth analysis of unemployment in the Great
Depression and the Great Recession, see CRS Report R40655, The Labor
Market During the Great Depression and the Current Recession, by Linda
Levine.
---------------------------------------------------------------------------
Prices as measured by the Consumer Price Index declined.
Most economists consider deflation to be a greater problem than
price level increases of a similar scale, because it can set in
motion a vicious cycle of economic decline. Falling prices
encourage consumers and businesses to postpone purchases
because things will be cheaper to buy in the future. When
prices are broadly declining, nominal wages and nominal
business revenues tend to fall. This discourages consumer
borrowing because it will be more difficult to pay back the
loan out of lower incomes. Businesses are also discouraged from
borrowing, because when their revenues decline, there is less
need to borrow and repaying the loans will be more difficult.
In 1929, there was no change in prices, but in 1931 the price
level fell by 7 percent. Between 1929 and 1932, prices fell 16
percent. Until early 1933, prices continued to fall but then
began a general (but not uniform) increase.
congressional deliberation, action, and oversight
At the outset of the Great Depression, the country already
had a financial regulatory framework designed for crisis
response. The OCC had been created following the panic of 1857
with banking and currency related powers, and the Federal
Reserve had been created following the panic of 1907 with
monetary policy powers. The bankruptcy law enacted during the
depression of the 1890s was still in effect. The case studies
in this section illustrate continued congressional discretion
and examples of Congress choosing to change the rules (often
temporarily), even if the rules of the game already encompass a
response mechanism. Congress retained discretion and did take
action to change the authorities and programs in place before
the crisis.
Many comparisons have been made between the recent Great
Recession and the Great Depression of the 1930s. Although there
may be a common belief that Congress during the Hoover
administration did nothing, historians are well aware that
Congress took numerous steps during the deepest parts of the
Depression (1930-1933). Because several policymakers during the
2007-2009 crisis consciously referenced lessons from the Great
Depression in their own policy responses, this section and the
section for the 2000s will treat each of the four policy areas
separately. A comprehensive list of all congressional policies
during the two periods would take many pages, so these sections
merely provide illustrative examples.
Fiscal policy
With the end of World War I in 1918, the government's
military expenditures declined, and the Federal Government
began to run a budget surplus. Until the stock market crash of
October 1929, the 1920s--sometimes called the ``Roaring
Twenties'' \50\ --were a time of general economic growth and
prosperity in the United States and internationally. To balance
the budget, Congress had cut taxes with the Revenue Act of
1921,\51\ the Revenue Act of 1924,\52\ the Revenue Act of
1926,\53\ and the Revenue Act of 1928.\54\ Treasury Secretary
Andrew Mellon proposed further cuts in 1929, but Congress
rejected them.\55\ Some Members of Congress objected to these
tax cuts. For example, Senator Robert La Follette argued
against the tax cuts on the grounds that they favored
corporations and high-income individuals because income taxes
were levied only on high-income households at that time.\56\
---------------------------------------------------------------------------
\50\ The phrase ``Roaring Twenties'' is something of a misnomer,
because there were three recessions in the decade before the official
start of the Great Depression in August 1929.
\51\ 42 Stat. 227; New York Times, ``Conferees Finish Work on Tax
Bill,'' November 20, 1921, p. 14; and New York Times, ``Democrats
Assail Tax Bill Changes,'' October 6, 1921, p. 4.
\52\ 43 Stat. 253; New York Times, ``Tax Conferee Fight Fizzles in
Senate: Democrats Abandon Fight for Majority of the Five Who Meet House
Group Today,'' May 14, 1924, p. 21.
\53\ 44 Stat. 9; W.M. Kiplinger, ``Prosperous America Cuts Taxes
Again: New Law Relieves 2,000,000 People of Levy on Their Incomes,''
New York Times, February 28, 1926, p. 25.
\54\ 45 Stat. 791; New York Times, ``Congress Voted $4,628,045,035:
Largest Peace-Time Budget Exceeds Its Predecessor by $478,542,508,''
June 7, 1928, p. 4.
\55\ New York Times, ``Hoover and Mellon Agreed on Tax Cut: White
House Denies Reports of a Conflict on Possible Reductions,'' July 4,
1929, p. 3.
\56\ New York Times, ``La Follette Scores Relief Compromise,''
February 11, 1931, p. 2.
---------------------------------------------------------------------------
Once the Great Depression began, the Federal Government's
budgets were in deficit under both Hoover and Franklin D.
Roosevelt. These deficits were primarily due to declining tax
receipts as part of the automatic stabilizers. Federal
spending, adjusted for deflation, increased. The budget
deficits were too small relative to the economy for many modern
economists to believe that they would have any meaningful
expansionary effect.
As the Great Depression deepened, the Hoover administration
called on Congress to increase taxes. For example, in 1932,
Secretary Mellon testified that there would be a $200 million
budget deficit and that taxes should be increased to balance
the budget.\57\ Congress debated the dangers of running a
deficit and passed the Revenue Act of 1932 (P.L. 72-154), which
increased income taxes on high-income households, the only ones
paying income taxes in those days. Even after these tax
increases, tax revenues continued to fall.
---------------------------------------------------------------------------
\57\ Roy G. Blakey and Gladys G. Blakey, The Federal Income Tax
(New York: Longmas, Green and Company, 1940).
---------------------------------------------------------------------------
However, to say that the Federal Government's budget was
too small relative to the economy to have a meaningful effect
is not the same as saying the government did not pursue any
legislation that was technically expansionary (even if too
small to matter in the aggregate). Although the real value
(adjusted for inflation) of overall economic spending declined
by nearly a third between 1929 and 1932, real Federal
Government expenditures actually increased. However, this
increase in Federal spending was partially offset by a decline
in State and local government spending.\58\
---------------------------------------------------------------------------
\58\ Federal Reserve Bank of St. Louis, Federal Reserve Economic
Data, at http://research. stlouisfed.org/fred2/series/FYFSD#. Converted
to calendar years by CRS.
---------------------------------------------------------------------------
A number of employment programs were passed and signed into
law or created by Executive order. Within the Roosevelt
administration, there were debates over the goals of the
programs.\59\ Some argued that their primary emphasis should be
on employing those out of work, while others argued that the
primary emphasis should be on building infrastructure at the
least cost. In addition, Federal, State, and local governments
provided direct relief to the unemployed. Legislation to create
new infrastructure was controversial.\60\ President Hoover
vetoed the Emergency Relief and Construction Act of 1932 as
originally sent to him but signed an amended version (P.L. 72-
302). Other related bills never made it out of Congress.
---------------------------------------------------------------------------
\59\ See, for example, Lester V. Chandler, America's Greatest
Depression 1929-1941 (New York: Harper and Row, 1970), pp. 193-194.
\60\ Chandler, ``Chapter 11.''
---------------------------------------------------------------------------
Monetary policy
Through the Federal Reserve Act, Congress had delegated
much of monetary policy to the independent agency. During the
1920s, the Federal Reserve had an active, countercyclical
monetary policy that was credited with alleviating a recession
in 1921, slowing overly rapid growth in early 1923, and
prompting an expansion after the 1923-1924 recessions.\61\
These seeming policy successes and the relatively brisk
economic growth during the 1920s caused some to believe that
the Fed could stabilize the economy.\62\ In order to support
Great Britain's attempt to resume convertibility to gold, the
Federal Reserve eased monetary policy in the late 1920s. Some
think that this may have contributed to an acceleration of
asset prices in the United States.\63\ The Federal Reserve
appears to have grown more confident during the 1920s that
monetary policy could be used to stabilize the economy. When
the stock market boom accelerated in the late 1920s, the
Federal Reserve took actions to deflate the bubble.\64\
---------------------------------------------------------------------------
\61\ Friedman and Schwartz, Monetary History, p. 296.
\62\ Barry Eichengreen, Golden Fetters: The Gold Standard and the
Great Depression, 1919-1939 (Oxford: Oxford University Press, 1992).
\63\ Alan H. Meltzer, A History of the Federal Reserve, Volume 1:
1913-1951, (Chicago: University of Chicago Press, 2004), p. 139.
\64\ James D. Hamilton, ``Monetary Factors in the Great
Depression'' Journal of Monetary Economics, vol. 19, no. 2 (March
1987), pp. 145-169.
---------------------------------------------------------------------------
While the administration of monetary policy had been
delegated to the Federal Reserve, Congress still determined the
definition of the dollar in terms of gold. In addition,
Congress retained the power to alter the authority of the
Federal Reserve and the OCC. Congress retained the power to
provide financial support to banks and facilitate the
resolution of failed banks.
The collapse in growth of the money supply was caused by
three distinct banking panics in 1930, 1931, and 1933. Bank
suspensions and failures shrank the money supply directly by
reducing checkable deposits. The Federal Reserve did not
intervene aggressively to mitigate bank failures. Bank failures
created practical obstacles for the extension of credit, such
as the loss of borrower records, which reduced the potential
effectiveness of monetary policies. This can be seen in the 33
percent drop in the money supply in the United States, compared
to a 13 percent drop in Canada during 1929-1933, which did not
suffer similar waves of bank failures.\65\ Some economists
believe that the Federal Reserve's decision to allow the money
supply to drop contributed to the severity of the Depression in
the United States, although the drop in economic activity was
similar in both countries.\66\
---------------------------------------------------------------------------
\65\ Friedman and Schwartz, Monetary History, p. 352
\66\ The quantity theory of money states that MV = PY, or that the
money supply times the velocity of money equals the price level times
the economy's production (usually measured as real net national
product, or NNP). The contraction of the real NNP was comparable in the
United States and Canada (^53 percent vs. ^49 percent) because the bulk
of the difference in MV = PY was borne by velocity (V, ^29 percent vs.
^41 percent), instead of Y (NNP).
---------------------------------------------------------------------------
As in the depression of the 1890s, the economic ``rules of
the game'' purportedly limited the range of available policy
actions. As in the 1890s, Congress retained the power to alter
those rules. First, Congress could leave or suspend the gold
standard and pursue expansionary monetary policies. Other
countries did this. Second, Congress could alter the powers and
authorities of the Federal Reserve and the OCC. Third, Congress
could authorize direct assistance to banks or pass legislation
facilitating orderly liquidation of banks.
Many modern economists consider Federal Reserve inaction
even within the constraints of the gold standard to be a factor
in the duration and intensity of the Depression. Although the
Federal Reserve took a number of steps to lower interest rates
and make occasional open market purchases, the Fed quickly
ceased because of fears of inflation or an international run on
the dollar. To many modern observers, these fears seem like
strange concerns, especially given the deflation of the time,
although there was eventually a run on the dollar after the
election results of 1932.
The congressional role was largely one of oversight at the
beginning of the Depression. Officials from the Fed and the OCC
testified before Congress along with submission of their
regular agency reports. Hearing transcripts reveal a variety of
congressional concerns. For example, the international status
of the dollar was regularly discussed. Other issues included
the rules for membership of banks in the Federal Reserve
System, the types of bank assets that could be used as
collateral for loans from the Fed, and several structural
issues that will be discussed in the banking section.
As the Depression deepened and dragged on, there was
legislation related to temporarily increasing the money supply.
Senators William Borah and Carter Glass wanted to increase the
supply of circulating safe assets that could be used as
collateral for private loans. Recall that in addition to coin-
backed notes, transactions can be funded by loans against
relatively safe collateral. In June 1932, the Senate Banking
and Currency Committee reported out the Glass bill, which was
designed to make Government bonds eligible to increase money in
circulation in this manner. Although President Hoover opposed
the approach as unnecessarily tying circulating medium to the
existing supply of assets (unlike the Federal Reserve, which
could adjust the money supply more elastically), the concept
was enacted as part of the Federal Home Loan Bank bill
(discussed more below) as the Glass-Borah rider.\67\
---------------------------------------------------------------------------
\67\ American Institute of Banking, ``Anti-Depression Legislation:
A Study of Acts, Corporations, and Trends Growing Out of the `Battle
with Depression,' '' December 1933, p. 73.
---------------------------------------------------------------------------
After the passage of the Glass-Borah rider, Congress
broadened the authority of the Federal Reserve to expand the
money supply. Glass had been a major figure in the 1914
creation of the Federal Reserve. At the time of the
establishment of the Federal Reserve, Glass had believed that a
central bank should loan to banks only on good collateral,
which was defined at the time as self-liquidating
collateralized commercial credit and other real bills, not
Government bonds.\68\ Under this real bills doctrine in 1914,
the Federal Reserve could not use government debt for important
monetary purposes, as it was thought that open market
operations fueled ``speculation,'' not productive investment.
By 1932, Glass and many others had changed their minds about
the real bills doctrine, and Congress passed and Hoover signed
legislation expanding the range of collateral eligible for Fed
discounting and broadened the range of eligible collateral to
include government debt.
---------------------------------------------------------------------------
\68\ Meltzer, History of the Federal Reserve, pp. 138-139.
---------------------------------------------------------------------------
As in the 1890s, uncertainty about political outcomes could
affect the credibility of the monetary standard. For example,
at the time there was a 5-month gap between November elections
and the inauguration of the President in March of the next
year. Uncertainty about whether Roosevelt would remain on the
gold standard caused international central banks to liquidate
U.S. securities that they held in lieu of monetary gold. This
was effectively a run on the dollar, and previous attempts to
defend the dollar against such a run had contributed to
monetary contraction. Domestically, bank depositors withdrew
their funds, and several State banking systems collapsed.
President Hoover asked President-elect Roosevelt to make an
announcement that he would honor gold, but Roosevelt refused.
In hindsight, the international central banks and domestic
depositors who dumped dollars were correct in that President
Roosevelt did devalue the dollar upon taking office.
Congress included legislation that devalued the dollar in
terms of gold in the emergency actions that accompanied FDR's
first hundred days. As discussed in the general description of
monetary policy, economists have noted that several countries
experienced recoveries after abandoning the gold standard.
Recovery for the United States also began after devaluation. In
devaluing the dollar, the 1933 acts also abrogated gold-based
cost-of-living adjustments in private debt contracts and in
Treasury bonds. The gold index clause provision is relevant
because otherwise the monetary revaluation would have been
offset by matching debt-burden adjustments in contracts that
had the clauses. The value of railroad bonds, U.S. Liberty
bonds, and many other securities remained in doubt until the
Supreme Court ruled against restitution for bondholders in
1935.
Banking regulation and assistance \69\
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\69\ A detailed contemporary history of banking-related legislation
was compiled by the American Institute of Banking in Anti-Depression
Legislation.
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Bank failures can exacerbate a recession in a number of
ways. First, because deposits serve as money, and banks loan a
fraction of their deposits, bank failures can shrink the money
supply. Second, bank failures can impair the channels by which
people desiring credit can access funds so that lower interest
rates do not translate into more people taking out loans.\70\
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\70\ Ben S. Bernanke, ``Nonmonetary Effects of the Financial Crisis
in the Propagation of the Great Depression,'' American Economic Review,
vol. 73, no. 3 (June 1983), pp. 257-276.
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Congress did not act immediately to address bank failures
or the monetary contraction that those failures contributed to.
However, as the Depression deepened, Congress took a number of
actions to directly assist banks and other financial
institutions while Hoover was President. In many cases, a
coalition of progressive Republicans and Democrats helped to
pass the legislation. During the Hoover administration, the
chairman of Senate Banking and Currency, Republican Senator
Peter Norbeck, had been active in creating direct government
lending institutions and other financial assistance programs at
the State level. He was part of the midwestern farm progressive
wing deg. of the party and did not have ideological
opposition to government intervention per se, although he
thought State governments should take the lead in some areas.
Senator Norbeck hired Ferdinand Pecora to begin analyzing the
role of banking in the Depression, resulting in the Pecora
Commission.
Congress held hearings to try to diagnose the problems in
banking. Congress may have had difficulty linking the bank
failures of the early 1930s to problems with the macroeconomy
because there had been many bank failures during the boom of
the 1920s. For example, the head of the OCC testified to
Congress in 1931 that the bank failures were due to the
structure of the U.S. banking system rather than to monetary
conditions. At the time, the United States still had thousands
of small, undiversified regional banks, because most States
prohibited branch banking. In the 1920s, before the Depression
started, hundreds of banks failed each year. The head of the
OCC testified before Congress that one solution to the banking
problem would be to preempt State law and to allow branch
banking. That is, he argued that the banks that were failing
were inefficient and should be failing.
By 1932, both Congress and the President were willing to
take direct action to assist the banking system. One major
change was Glass-Steagall I, which responded to ``toxic''
assets held in the banking system. Problems in securities
markets had made some of the securities held by banks
unmarketable. The crisis in securities-based lending was
alleviated by expanding the range of collateral eligible for
the Federal Reserve.
Another measure that provided direct assistance to banks
was the establishment of the Reconstruction Finance Corporation
(RFC).\71\ Congress passed and Hoover signed legislation
creating an agency with authority to provide direct financial
assistance to struggling banks and other financial firms. At
first, the RFC loaned money to banks. When Roosevelt took
office, RFC assistance to banks was transformed more often to
capital injections. The RFC eventually became a creditor to
many kinds of financial institutions and entities, not just
banks--including the State of Arkansas, whose entire debt was
purchased for 1 year by the RFC.
---------------------------------------------------------------------------
\71\ A history of the RFC was written by its early official, Jesse
Jones. Jones notes that during his 13-year tenure, each successive
Congress broadened the powers of the RFC. See Jesse H. Jones, Fifty
Billion Dollars: My Years with the RFC, 1936-1945 (New York: Macmillan,
1951).
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Congress also passed and Hoover signed another piece of
legislation to give smaller financial institutions greater
access to credit markets. The Federal Home Loan Bank (FHLB)
system was designed to allow banks and mortgage lenders to form
what were essentially mutual associations to borrow through
securities markets as a single entity. These FHLBs are
government-sponsored banks that lend to bankers, not to
individual household or business borrowers. Initial funding for
the FHLB system came from the newly created RFC.
Upon the election of Roosevelt and a new Congress, the
United States took immediate new steps to address problems in
the banking system. First, because the third wave of bank
failures and the run on the dollar had occurred immediately
prior to his inauguration, Roosevelt took a number of steps. He
declared a banking holiday. The financial condition of all
banks was reviewed, and only healthy banks were allowed to
reopen. Roosevelt directed the RFC to switch from loans to
capital injections, and he devalued the dollar in terms of gold
internationally, which increased the real value of monetary
reserves and stimulated net exports.\72\
---------------------------------------------------------------------------
\72\ The trade effect was likely minimal, because many countries
enacted protective trade laws in response to the United States raising
tariffs.
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Congress passed the Banking Act of 1935 (P.L. 73-66), which
expanded the Federal Reserve's powers. It moved power from the
regional banks to the Board of Governors and its chairman. The
act also made the Fed independent of Treasury.
Bankruptcy and debt restructuring
As in the 1890s, rapid deflation increased the real burden
of debts as wages and prices fell while the nominal value of
debts were unchanged. There were widespread business failures,
farm foreclosures, municipal defaults, and personal
insolvencies. Farm mortgages were particularly problematic to
resolve. On the one hand, the decline in property values
reduced the ability of lenders to recover the value of the loan
through foreclosure so they might have been willing to work
things out. On the other hand, problems in financial
institutions' access to credit described above made it
imperative to recover funds as quickly as possible. Similar
tradeoffs existed for nonbank lenders as well.
As farm foreclosures increased, several State governments
began responding to farmers' concerns. Several States enacted a
mortgage foreclosure moratorium, preventing lenders from
seizing property. In some places private citizens reportedly
tried to intimidate potential bidders at foreclosure sales so
people could buy their properties back.
Congressional action to address foreclosures was included
in the Federal Home Loan Bank Act. The act included a temporary
delay of foreclosure proceedings for certain banks. The newly
created RFC could advance the funds to cover delayed payments
to institutions that were joining the system.
Debt restructuring was also affected by the method used to
go off the gold standard. The gold acts did not just permit
flexible exchange rates; they also invalidated gold index
clauses. A gold index clause was similar to a cost-of-living
adjustment. If the gold index clauses had not been invalidated,
then when Congress revalued gold from 16:1 to 35:1, the balance
for debts with gold clauses would have risen by 60 percent.
Congress invalidated not only gold clauses in its own bonds but
also such clauses in private contracts.
Congress responded to the Great Depression with many other
programs for specific economic sectors. Examples include the
Agricultural Adjustment Act and the National Industrial
Recovery Act, but this report is limited to the policy areas
described in the introduction.
2000s and the Great Recession
economic and institutional context
Like the Great Depression, the country already had a
financial regulatory framework designed for crisis response at
the outset of the Great Recession. In addition to the OCC and
the Federal Reserve, the Federal Deposit Insurance Corporation
(FDIC) was in place to prevent bank runs, and other agencies
and legal frameworks were in place designed to facilitate
confidence in financial markets and their continued
functioning. Like the Great Depression section, the case
studies in this section illustrate continued congressional
discretion and examples of Congress choosing to change the
rules of the game (often temporarily), even if the rules
already encompass a response mechanism. Many congressional and
agency actions taken to combat the Great Recession, including
temporary measures, were analogous to similar actions during
the Great Depression.
Even though the legal framework differed in significant
ways, some of the economic issues of the Great Recession of
2007-2009 resemble those of prior depressions. A period of
debt-funded expansion was followed by a financial crisis and a
period of extended unemployment.\73\ Once the recession began,
investment lagged despite low interest rates. As in the 1840s,
State financial problems were a drag on fiscal policy. As in
the 1890s, defaults on mortgages wrapped in securities
transmitted losses through the capital markets. As in the
1930s, when market transactions in the securities halted, it
became difficult for financial institutions that held the
securities to value them or to use them as collateral for
loans. Like in the 1930s, there was a crash in the repurchase
agreement market.\74\
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\73\ National Commission on the Causes of the Financial and
Economic Crisis in the United States, The Financial Crisis Inquiry
Report, January 2011, http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-
FCIC.pdf.
\74\ Ibid.
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By most measures, the Great Recession was milder than the
Great Depression. Some of that difference may be due to
differences in policy, but some of the difference may have been
due to differences in the nature of the economic shocks that
started the crises. Unemployment during the Great Recession
peaked at less than half the peak of the Great Depression.
Unlike the deflation of the Great Depression, the price level
remained relatively stable during the Great Recession.
During the 2000s, more of congressional emergency authority
had been delegated to independent agencies than in prior
crises. The Federal Reserve was given broad emergency lending
powers in section 13(3) of the Federal Reserve Act. Leaving the
gold standard and eventually adopting floating exchange rates
freed the Federal Reserve from some external constraints on
monetary policy decisions.\75\ The FDIC existed to dissuade
depositors from running on banks, and the FDIC had the
authority to temporarily increase its coverage. The Securities
and Exchange Commission could limit trading on certain stock
transactions. These delegations meant that some rules could be
changed even if Congress took no action, although Congress
still conducts oversight. Policymakers in the agencies had more
options available to them in the 2000s without having to ask
for additional congressional authority or to negotiate
internationally.
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\75\ Domestic convertibility of gold was suspended in 1933.
International convertibility was suspended in 1972.
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Furthermore, key policymakers such as Federal Reserve
chairman Ben Bernanke and Council of Economic Advisers chair
Christina Romer had spent part of their academic careers
studying the causes of the Great Depression. Bernanke and Romer
both felt that tight monetary policy and Federal Reserve
inaction had contributed to the Depression.\76\ Furthermore,
they both believed that sustained recovery did not occur until
the gold standard had been abandoned, increasing money flows in
the United States.
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\76\ Ben S. Bernanke, ``Remarks on Milton Friedman's Ninetieth
Birthday,'' November 8, 2002, at http://www.federalreserve.gov/
BOARDDOCS/SPEECHES/2002/20021108/.
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congressional deliberation, action, and oversight
Fiscal policy
Federal fiscal policy was deliberately expansionary during
the early stages of the mortgage crisis and the subsequent
recession.\77\ The Federal Government's deficit increased
during both the Great Depression and the Great Recession,
although nearly twice as much during the Great Recession in
relation to GDP.\78\ This expansionary set of policies at the
Federal level was partially offset by tight conditions at the
State level. As the economic malaise endured, Federal fiscal
policies became less expansionary. This section of the report
will focus on fiscal policies in three periods: (1) after
mortgage turmoil began but before the financial panic in
September 2008, (2) from the 2008 panic until the 2010
elections, and (3) after 2010.
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\77\ The formal macroeconomic theories of expansionary fiscal
policy were not widely accepted until after the publication of John
Maynard Keynes' General Theory in 1935. Although there were people who
advocated deficit spending in recessions prior to 1935, they did not do
so on Keynesian grounds. In contrast, policy discussions and
congressional deliberations in the 2000s expressly considered the
Keynesian framework for macroeconomic policy decisions.
\78\ Bureau of Economic Analysis, U.S. Department of Commerce, Net
Federal Government Saving, downloaded from St. Louis Federal Reserve
Bank, http://research.stlouisfed.org/fred2/series/AFDEF. This is in
current dollars.
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Even before the beginning of a recession had been
officially declared, policymakers took steps for expansionary
fiscal policy. Turmoil in financial markets erupted during the
summer of 2007, and policymakers began considering responses
shortly thereafter. General economic conditions were flattening
out, and a recession began in December. However, the formal
dating of recessions is backward-looking, so in early 2008 no
one knew that a recession had started. In order to reduce the
risk of a recession, Congress enacted a tax cut in early 2008
designed to maintain consumer spending. Despite this action,
economic conditions continued to worsen, perhaps because this
tax cut was relatively small as a share of GDP.
Declines in State and local spending partially offset
Federal fiscal actions throughout the period. Many States have
balanced budget requirements in their State constitutions.
State legislators are therefore unable to change their budget
rules of the game merely through legislation. Many local
governments rely on property taxes as a significant source of
revenue, and these sources of funds were particularly hard hit
when the housing bubble popped. As a result, many State and
local governments were cutting spending and raising taxes when
the Federal Government was increasing the size of its deficits.
Furthermore, investor confidence in the creditworthiness of
several State governments began to deteriorate, as measured by
the spread between their borrowing costs and Federal borrowing
costs and by the ratings agencies. California even temporarily
issued its own monetary scrip in response to its budgetary
woes.
After the financial panic in September 2008 and the
election of a new President with majorities in both Chambers of
Congress of his own party, Federal fiscal policy became even
more expansionary. In part, this was due to automatic
stabilizers that act countercyclically and thus tend to
increase Federal spending and reduce Federal tax receipts
during a recession. However, it was also due in part to
legislation designed to be expansionary.
There were several fiscal policies designed to temporarily
suspend rules. There was a temporary suspension of the
collection of a portion of payroll taxes (P.L. 111-312). During
the Great Recession, the American Recovery and Reinvestment Act
(P.L. 111-5) \79\ was characterized as the primary stimulus
bill. In addition to public works funding, it included tax
cuts, provided money for expanded unemployment assistance, and
granted financial support to State and local governments. There
was also a temporary program for a special class of bonds to
facilitate infrastructure spending (Build America bonds). Other
programs, such as ``cash for clunkers'' and a first-time
homebuyer tax credit, were targeted at specific economic
sectors.
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\79\ For more information, see CRS Report R40537, American Recovery
and Reinvestment Act of 2009 (P.L. 111-5): Summary and Legislative
History, by Clinton T. Brass et al.
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After the 2010 elections, which resulted in a Republican
majority in the House and reintroduced divided government,
fiscal policies became less expansionary.\80\ Concerned that
continued Federal budget deficits would be a long-term problem,
the Republican House negotiated for spending cuts during debt
ceiling talks, resulting in legislation that capped
discretionary spending. With Congress unable to reach a
consensus during the appropriations process, a series of
continuing budget resolutions effectively froze Federal
spending for a time. Disagreements between the Republican House
and the Democratic Senate and President resulted in a shutdown
of the Federal Government.
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\80\ Because some government spending and tax receipts respond to
economic conditions, there is an automatic stabilizer effect for fiscal
policy. Fiscal policy becomes expansionary during recessions because
deficits naturally grow and contractionary during booms as tax receipts
generally rise. Economists therefore use a measure, called the full
employment budget, to account for this natural fluctuation in the
budget over the business cycle. As measured against the full employment
budget, Federal fiscal policies after 2010 were contractionary.
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Monetary policy
The Federal Reserve under Bernanke deliberately rejected
several policies of the 1930s in favor of more expansive
programs.\81\ The Fed uses different tools in its various
roles. To implement monetary policy, the Federal Reserve buys
and sells Government bonds (i.e., conducts open market
operations). As lender of last resort (LOLR), the Federal
Reserve can provide emergency lending to distressed banks. To
counter illiquidity in the financial system, the Federal
Reserve can expand the types of collateral that it will lend
against. The Federal Reserve used its existing authorities to
take more aggressive action than it had taken in the 1930s.
---------------------------------------------------------------------------
\81\ Ben S. Bernanke, ``Speech on Monetary Policy Since the Onset
of the Crisis,'' August 31, 2012, at http://www.federalreserve.gov/
newsevents/speech/bernanke20120831a.htm.
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The Federal Reserve used its LOLR powers to facilitate the
rescue or sale of some distressed financial institutions. Under
normal conditions, the LOLR authority is limited to commercial
banks that are members of the Federal Reserve System. During
the mortgage crisis, the Fed extended access to its LOLR
facilities to nonmembers. In March 2008, the Fed provided a
loan to assist JPMorgan in acquiring failing broker-dealer Bear
Stearns. The Fed and JPMorgan loaned to a newly created entity
called Maiden Lane, which held a pool of Bear Stearns assets
for which JPMorgan took first loss and the Federal Reserve
received senior treatment. The Federal Reserve considered using
the Maiden Lane structure to intervene on behalf of the broker-
dealer Lehman Brothers in September 2008, but this did not
happen. A financial panic occurred when the Lehman's bankruptcy
was announced. The Federal Reserve used the Maiden Lane
structure to intervene on behalf of the insurer AIG.
The Federal Reserve used its authority to lend against good
collateral to set up a number of temporary liquidity programs
designed to address illiquid assets. As discussed above, the
ability of securities to act as good collateral in private
transactions erodes during a panic, including for nonbanks. If
so, not only may aggregate credit decline, but specific lines
of businesses that had relied on collateralized lending
structures may be unable to roll over their debt to continue to
finance existing operations. When trading in several classes of
asset-backed securities (ABS) collapsed during the crisis, they
could no longer be valued to be used as collateral for further
loans. Although banks could use ABS as collateral, the Term
Asset Loan Facility (TALF) enabled nonbanks that held ABS that
had become toxic during the crisis to obtain short-term loans
from the Fed. Like the expansion of LOLR powers, access to TALF
was not limited to member banks of the Federal Reserve System.
Since the start of the 2007-2008 recession, the Federal
Reserve has used open market operations to lower interest rates
and stimulate lending. With short-term interest rates almost
zero, the Federal Reserve has taken a number of unprecedented
additional steps to stimulate the economy. It has characterized
these actions, including quantitative easing (QE), as both
extraordinary and temporary. Under QE, the Federal Reserve
purchased securities to expand its balance sheet (and the money
supply) by purchasing longer term Treasury debt and mortgage-
related bonds and securities. The Federal Reserve also made
swap arrangements with foreign central banks to make sure that
dollars, which are the worldwide reserve currency, were
available to the international finance system.
In its oversight role, Congress called Fed officials to
testify before committees to diagnose the economic problem and
explain Federal Reserve actions (or inactions) to address the
crisis. At times, some Members of Congress were dissatisfied
with the level of information provided, and Congress ultimately
passed legislation that provided greater oversight powers of
certain Fed programs, including expanding Government
Accountability Office audit power for some Fed functions.
Dissatisfied with the ad hoc nature of the response to the
financial crisis and convinced by Fed officials that lack of
authority prevented further action, some Members of Congress
called for expanding the Federal Reserve's powers and mission.
For example, the Dodd-Frank Wall Street Reform and Consumer
Protection Act (P.L. 111-203) granted the Fed greater
regulatory authority over some nonbank financial institutions,
transferred some of the Fed's mortgage-related and consumer
protection regulatory powers to a new agency, and eliminated
the ability of the Fed to use a Maiden Lane-type structure for
individual institutions. Proposals to alter the Fed's monetary
policy mission, such as inflation targeting, were discussed but
not enacted. Some Members of Congress expressed doubts about
the effectiveness and longrun implications of QE and growing
Federal debt.
Banking regulation and financial institution intervention
As discussed above, the Federal Reserve used the Maiden
Lane structure on an ad hoc basis to rescue some financial
institutions. In some cases, these firms were performing money-
creation services similar to banks, but they were not chartered
commercial banks and did not have direct access to some Federal
Reserve facilities. In one example, broker-dealers used
repurchase agreements to fund credit for other financial
transactions. Refusal to roll over repurchase agreements has
been likened to a run by bank depositors. Monetary conditions,
if defined broadly enough to include credit generated through
repurchase agreements, were more stringent than traditional
measures might indicate. Also, two government-sponsored
enterprises (GSEs), Fannie Mae and Freddie Mac--which served as
intermediaries between mortgage markets and securities
markets--became distressed.
Congressional response took many forms, but in the interest
of space, this report will focus on just a few. First, Congress
enacted the Housing and Economic Recovery Act of 2008 (HERA;
P.L. 110-289). This act gave the Secretary of the Treasury
authority to give direct financial assistance to the GSEs.
Using this authority, Treasury and the newly created Federal
Housing Finance Agency placed the GSEs in conservatorship. The
panic of September 15, 2008, began less than 2 weeks after
Treasury exercised its HERA powers.
Congress also passed the Emergency Economic Stabilization
Act of 2008 (EESA; P.L. 110-343). EESA was the primary tool for
providing financial assistance to the banking system and
related institutions. It was also used to assist automakers and
some homeowners. EESA gave the Secretary of the Treasury
temporary authority to acquire mortgage-related assets or any
other asset that the Secretary believed could assist financial
stability. Initially, EESA was used to inject capital into
financial institutions by purchasing their preferred shares--
the Capital Purchase Program--and became colloquially known as
the bank bailout, although the return was positive for the
government. The EESA Capital Purchase Program included a wide
variety of financial firms, from firms that formerly had been
the broker-dealers in the repurchase agreement market to some
very small community banks. It is worth noting that the first
vote on EESA failed, and financial markets fell further upon
the news.
EESA also contained a provision related to money market
mutual funds (MMFs). During the panic, one MMF ``broke the
buck,'' meaning that investors lost principal in this usually
safe liquid investment product. Investors then began
withdrawing funds from MMFs more generally. Treasury exercised
authority left over from the gold standard to announce a
temporary guarantee program for MMFs. EESA included a provision
to prevent further use of the Exchange Stabilization Fund as a
guarantor of MMFs.
Bankruptcy and debt restructuring
Congress confronted many issues related to the treatment of
distressed debt, as might be expected in a crisis driven by
mortgage defaults. Congress deliberated at least three areas of
concern. First, as discussed in the Fed's LOLR role,
policymakers were concerned about the resolution of nonbanks
through the bankruptcy system. Second, the relatively large
number of banks failing presented Congress with concerns over
the financial soundness of the FDIC. Third, individual
homeowners who were in default sought relief from lenders.
Although mortgage foreclosure moratoriums were never enacted,
delays of the foreclosure process were achieved through other
means.
Initially, policymakers created voluntary programs to
encourage mortgage modification rather than foreclosure. For
example, when house prices first began falling, the
administration created the Hope Now Program to encourage
voluntary modifications by mortgage servicers that acted on
behalf of the owners of mortgage-backed securities.
Dissatisfied with the results, Congress passed legislation to
insulate mortgage servicers from potential investor lawsuits if
they offered modifications before a homeowner missed payments.
As bank failures increased, the FDIC inherited a portfolio
of distressed mortgages owned by failed banks. In its role as
receiver, the FDIC initiated a program of mortgage
modifications for the loans it controlled. Called the IndyMac
Program for one of the failed depository institutions, the FDIC
program became a model for other Federal initiatives.
Mortgage servicers were compelled to delay foreclosures in
some cases and encouraged to in others. For example, Congress
passed legislation requiring banks that participated in EESA to
offer mortgage modifications. Similarly, the conservatorship of
the GSEs was used as a vehicle for mortgage modification
programs such as Home Affordable Refinance Program and Home
Affordable Modification Program. In addition, mortgage
modification policies were achieved by a negotiated settlement
to end some lawsuits against the banks that had the largest
share of the mortgage servicer business.
Conclusion
Just as a glass may be described as half full or half
empty, history may reveal continuity or change. The episodes
described above contain some continuities. During financial
crises, people have asked for temporary changes to the existing
rules of the game. Furthermore, even though the institutional
frameworks of 1840, 1893, 1930, and 2008 were vastly different,
there are consistencies in the calling for Congress to adjust
the budget and aid State governments, change the structure and
mission of the central bank (or even to create one), provide
financial assistance to distressed banks and financial firms,
and change the laws for the treatment of bankrupt debtors. On
the other hand, history also reveals change, as Congress has
created agencies to which it has delegated authority. In times
of crisis, Congress' initial reaction may be to exercise
increased oversight, although Congress can and has changed the
powers of agencies during financial crises.
Despite precautions, bad economic events are likely to
happen again in the future. Congress can expect to be called to
consider temporarily suspending, or even fundamentally
changing, the economic rules of the game. So long as the
Constitution grants Congress the authority to deal with fiscal
policy, monetary policy, banking regulation, and bankruptcy, a
financial crisis will most likely result in calls to revisit
the normal rules of the game.
Historically, while Congress did not always make the same
decisions in the financial crises discussed, Congress did
deliberate similar issues. It is difficult to interpret
congressional inaction for fiscal policy in the 1840s and
monetary policy in the 1890s as inability to act, because
Congress enacted other temporary measures (such as bankruptcy
laws) during the same crises. Similarly, it is difficult to
interpret congressional action to assist financial institutions
during the 1930s and the 2000s as Congress' hands being forced,
because there were potential actions Congress declined during
the same crises.
To the extent the past is a guide, one would expect people
to petition Congress to use its powers to facilitate temporary
changes to whatever rules are in place during the next economic
crisis. Therefore, attempts by a current Congress to create a
framework that would prevent a future Congress from having to
deliberate on an unpopular financial rescue package during a
future crisis is problematic. On the other hand, perceptions by
market participants that Congress must act to save distressed
firms may be frustrated, as illustrated by congressional defeat
of the Johnson Plan during the 1840s, congressional defeat of
the free silver movement during the 1890s, and congressional
willingness to shut down the government in the 2000s. The
express constitutional grant of authority to Congress over
economic policy means that these issues are likely to be
deliberated during a crisis no matter what the preexisting
rules are, because people often want temporary changes to
existing rules, but it does not commit Congress to either
action or inaction during a crisis.
Shocks to the System: Congress and the Establishment of the Department
of Homeland Security
William L. Painter
Analyst in Emergency Management and Homeland Security Policy
----------
After the 9/11 terrorist attacks, Congress passed a
massive executive branch reorganization, creating the
Department of Homeland Security. It pulled together
parts of 22 Federal agencies with over 170,000
employees and a budget of roughly $30 billion. Despite
the size and scope of the reorganization, the
legislation to establish it moved quickly through
Congress. It did so in a process galvanized by two
major shocks: the attacks themselves, and a reversal of
the White House position from opposing the
establishment of a new department to proposing one.
Some parts of Congress had already been working on this
idea. After the shock of the 9/11 attacks, those
efforts received greater attention. Once the
administration endorsed creation of a new department,
however, the work of the committees was largely set
aside. A more thorough debate at the time could have
developed a broader consensus over how to best address
homeland security issues, and preemptively resolved
some of the lingering questions that face Congress and
the department today. When Congress again finds itself
in the position of being pressed to act quickly on
complex, long-term organizational issues, it may be
worth considering the body's susceptibility to these
kinds of outside shocks, which may leave unresolved
issues and their avoidable consequences in its wake.
Introduction
In the wake of the terrorist attacks of September 11, 2001,
Congress undertook a series of actions aimed at shoring up the
Nation's ability to prevent and respond to terrorist attacks.
Two supplemental appropriations were passed to fund response,
recovery, and security efforts. Legislation to bail out the
staggering airline industry was passed, as was legislation to
establish the Transportation Security Administration. Congress
enacted sweeping authorizations for the use of military force
to bring the leaders of the organization that perpetrated the
attacks to justice. The PATRIOT Act was signed into law,
broadening the authority of the government to collect
information.
One of the most significant moves was the massive
reorganization of the executive branch that created the
Department of Homeland Security (DHS). The legislation to
create this department changed the face of government, pulling
together parts of 22 Federal agencies with over 170,000
employees and a budget of roughly $30 billion. Despite the size
and scope of the reorganization, the legislation to establish
it--the Homeland Security Act of 2002 \1\ --moved incredibly
quickly through Congress. It did so in a process galvanized by
two major shocks: the attacks themselves, and a reversal of the
White House position from opposing the establishment of a new
department to proposing one.
---------------------------------------------------------------------------
\1\ P.L. 107-296.
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This report uses the backdrop of those events to illustrate
how various internal factors--such as the congressional
committees, calendar, and leadership--establish the pace and
process of the debate on complex legislation, and how in a time
of crisis, external shocks can impact that same pace and the
outcome of that process.
The Pre-9/11 Congress
In early September 2001, Congress was resuming debate on a
number of issues, having just returned from an August break. A
comprehensive energy policy bill, Social Security reform, the
state of the economy, a shrinking budget surplus, and passage
of appropriations legislation topped the agenda.
Discussions of the changing threat environment were going
on, but were not a primary concern of Congress. Much of these
discussions had centered on reports by the U.S. Congressional
Advisory Panel to Assess Domestic Response Capabilities for
Terrorism Involving Weapons of Mass Destruction \2\ --also
known as the Gilmore Commission--and the U.S. Commission on
National Security/21st Century \3\ --also known as the Hart-
Rudman Commission.
---------------------------------------------------------------------------
\2\ Reports available at http://www.rand.org/nsrd/terrpanel.html.
\3\ Reports available at http://govinfo.library.unt.edu/nssg/
Reports/reports.htm.
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In December 2000, the Gilmore Commission released its
second annual report, ``Toward a National Strategy for
Combating Terrorism.'' The report called for the creation of a
``National Office for Combating Terrorism,'' which would be
headed by a Senate-confirmed director who would formulate
strategy and use the budget process to help coordinate the
estimated 40 parts of the Federal Government involved in
counterterrorism activities. However, the director would not
have operational control of the various elements.\4\
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\4\ Advisory Panel to Assess Domestic Response Capabilities for
Terrorism Involving Weapons of Mass Destruction, ``Second Annual Report
to the President and the Congress of the Advisory Panel to Assess
Domestic Response Capabilities for Terrorism Involving Weapons of Mass
Destruction: Toward a National Strategy for Combating Terrorism,''
December 15, 2000, at http://www.rand.org/content/dam/rand/www/
external/nsrd/terrpanel/terror2.pdf.
---------------------------------------------------------------------------
In January 2001, the Hart-Rudman Commission released its
third report in a series on American security policy in the
21st century, entitled ``Roadmap for Security: An Imperative
for Change.'' The report called for a number of actions to
shore up American security and economic competitiveness. A
warning in the series about the likelihood of a terrorist
attack on American soil drew some attention. In March and April
2001, House and Senate committees held hearings on the
recommendations of the commissions.\5\
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\5\ See, for example: U.S. Congress, House Committee on
Transportation and Infrastructure, Subcommittee on Economic
Development, Public Buildings and Emergency Management, Combating
Terrorism: Options to Improve Federal Response, 107th Cong., 1st sess.,
April 24, 2001, Serial No. 107-11 (Washington: GPO, 2002); and U.S.
Congress, Senate Committee on the Judiciary, Subcommittee on
Technology, Terrorism, and Government Information, Homeland Defense:
Exploring the Hart-Rudman Report, 107th Cong., 1st sess., April 3,
2001, S. Hrg. 107-239 (Washington: GPO, 2002).
---------------------------------------------------------------------------
One of the Hart-Rudman recommendations was creation of ``a
new National Homeland Security Agency to consolidate and refine
the missions of the nearly two dozen disparate departments and
agencies that have a role in U.S. homeland security today.''
\6\ As the constitutional authority to establish and organize
agencies to carry out Federal laws lies with Congress,\7\
implementing this recommendation would require legislative
action. Representative Mac Thornberry introduced a bill in the
107th Congress--H.R. 1158--which would have established a
National Homeland Security Agency, made up of the Federal
Emergency Management Agency, the U.S. Customs Service, the
Border Patrol, the U.S. Coast Guard, and parts of the
Department of Commerce and Federal Bureau of Investigation.
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\6\ United States Commission on National Security/21st Century,
``Road Map for National Security: Imperative for Change,'' January,
2001, p. iv.
\7\ U.S. Constitution, Article I, Section 8, clause 18 (the
``Necessary and Proper Clause'') and Article II, Section 2, clause 2
(the ``Appointments Clause'').
---------------------------------------------------------------------------
Representative Thornberry's approach was not the only
recommendation on how to move forward. Representative Ike
Skelton introduced H.R. 1292 (107th Congress) shortly
thereafter, which would have provided direction to the White
House to take a coordinated strategic approach to homeland
security led from the White House and develop a comprehensive
strategy for homeland security--a position more similar to the
recommendation of the Gilmore Commission.
Other thoughts of reorganization in what is now called
homeland security had been percolating for much longer. One
such concept concerned immigration and customs, where
reorganization to present a single inspection at the border had
been discussed. Multiple Federal agencies were then present at
the border and lacked efficiency. One observer later noted that
this idea had been discussed as far back as the Nixon
administration.\8\
---------------------------------------------------------------------------
\8\ U.S. Congress, Senate Committee on Homeland Security and
Governmental Affairs, The Future of Homeland Security, The Evolution of
the Homeland Security Department's Roles and Missions, 112th Cong., 2d
sess., July 12, 2012, S. Hrg. 112-612 (Washington: GPO, 2012), p. 63.
---------------------------------------------------------------------------
Then four planes were hijacked, and three struck their
targets. One of the 2,977 victims killed in the attacks was New
York City Fire Department Special Operations Chief Ray Downey,
a member of the Gilmore Commission, who was lost in the
collapse of the World Trade Center.\9\
---------------------------------------------------------------------------
\9\ U.S. Congress, Senate Committee on Governmental Affairs,
Responding to Homeland Threats: Is Our Government Organized for the
Challenge?, 107th Cong., 1st sess., September 21, 2001, S. Hrg. 107-207
(Washington: GPO, 2002), p. 12.
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Among the effects of these attacks was an initial shock to
Congress, which shook it out of its traditional pattern of
operations. This shock drove homeland security policy matters
from discussion on a more methodical strategic time horizon
through the committee process to the daily agenda of every
Member, with these issues being debated across the media as the
public demanded action.
Congress Responds
In the hours and days after the attacks, much of the
partisan rhetoric that can characterize congressional debate
was shelved. The immediate priorities in the wake of the
attacks were summed up by one senior House staff member:
Restore the Pentagon and New York; assess the readiness of
Federal agencies to deal with the threat; secure the Capitol
Complex; and establish a plan for the continuity of
government.\10\
---------------------------------------------------------------------------
\10\ Interview with Jim Dyer, former House Appropriations Committee
staff director, January 16, 2014.
---------------------------------------------------------------------------
By the end of the 7-day period after the attacks, Congress
had moved a number of pieces of legislation addressing those
priorities: expediting benefit payments to public safety
officers injured or killed in the attacks and aftermath; \11\
providing $40 billion in supplemental appropriations, at least
half of which was to be for disaster recovery and assistance at
the attack sites; \12\ and an authorization for the use of
military force in response to the attacks.\13\ It took Congress
and the White House just 2 days to enact legislation to provide
support for the airline industry, which had faced significant
business disruptions in the days following the attacks.
---------------------------------------------------------------------------
\11\ P.L. 107-37.
\12\ P.L. 107-38.
\13\ P.L. 107-40.
---------------------------------------------------------------------------
October 2001 saw Congress pass the USA PATRIOT Act,\14\
which included a broad range of changes to national security
law, including expanded surveillance authorities, and
additional tools to combat international money laundering and
financing of terrorist activities. In the wake of the anthrax
letters sent to Capitol Hill, additional funding for homeland
defense was proposed in both the House and Senate. A tax relief
bill for victims and areas affected by the attacks ultimately
became law in early 2002,\15\ and unemployment assistance under
the Stafford Act was extended in March 2002 by 13 weeks.\16\
---------------------------------------------------------------------------
\14\ P.L. 107-56.
\15\ P.L. 107-134.
\16\ P.L. 107-154.
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In the middle of all this legislative activity, initial
positions on how to improve Federal-level homeland security
coordination and policymaking were being staked out in the
executive branch and Congress. On September 20, 2001, President
George W. Bush announced that he would sign an Executive order
establishing an Office of Homeland Security, to be headed by an
Assistant to the President for Homeland Security, and a
Homeland Security Council.\17\ The office's head was to be
former Pennsylvania Governor Tom Ridge. On October 11, 2001, 3
days after the President signed the Executive order, Senators
Joseph Lieberman and Arlen Specter introduced S. 1534, to
establish a ``Department of National Homeland Security,'' along
the general lines of the Hart-Rudman Commission proposal.
---------------------------------------------------------------------------
\17\ Executive Order 13228, ``Establishing the Office of Homeland
Security and the Homeland Security Council,'' 66 Federal Register
51812, October 8, 2001.
---------------------------------------------------------------------------
Press reports and congressional statements paint a picture
of Governor Ridge's office being in an awkward position at
best. His role was to coordinate efforts from the White House,
but Governor Ridge lacked the authority needed to overcome
bureaucratic obstacles or change the way the incumbent
executive branch structure was addressing homeland security
issues.\18\ The White House would not allow him to testify at
hearings because his position was that of an advisor to the
President, rather than the leader of a department established
in law. A Governor Ridge-led attempt to restructure border-
serving agencies was unsuccessful as agencies defended their
institutional ``turf.'' \19\
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\18\ For example, see U.S. Congress, Senate Committee on
Governmental Affairs, Legislation to Establish a Department of National
Homeland Security and a White House Office to Combat Terrorism, 107th
Cong., 2d sess., April 11, 2002, S. Hrg. 107-472, p. 2 (Senator
Lieberman's remarks), p. 25 (former Senator Warren Rudman's remarks),
and p. 30 (Comptroller General David Walker's remarks).
\19\ Susan B. Glasser and Michael Grunwald, ``Department's Mission
Was Undermined From Start,'' The Washington Post, December 22, 2005, p.
A1, Final.
---------------------------------------------------------------------------
At a press briefing in March 2002, the administration
publicly opposed the creation of a new department. Ari
Fleischer, the President's spokesman, stated that the Office of
Homeland Security was ``working extraordinarily well.''
Fleischer added, ``Creating a Cabinet post doesn't solve the
problem'' of the need for a coordinated approach to homeland
security.\20\
---------------------------------------------------------------------------
\20\ CQ Newsmaker Transcripts, ``White House Holds Regular News
Briefing,'' March 19, 2002.
---------------------------------------------------------------------------
White House support was viewed as a key missing element by
Senate proponents of reorganization. At a hearing in April
2002, Senators expressed bipartisan support for a significant
reorganization effort, but Senate Governmental Affairs
Committee Ranking Minority Member Fred Thompson noted in his
opening statement the critical role of the White House in
advancing any type of reorganization, and pleaded for a
measured approach to reorganization, saying:
I think we need to face up to the fact that to have any
changes, we are going to have to work together with the White
House to get them done. To have any real results, we are going
to have to do it under the President's leadership . . . .
I believe that because the job is so important, is so
complex . . . that we need to give the administration a fair
shot at coming forth with how they feel it ought to be done and
see how that flies, what it looks like, and, to the extent we
can see how it is working before we launch off into anything
that would be extremely specific in the reorganizing or the
reshuffling of the boxes.\21\
---------------------------------------------------------------------------
\21\ S. Hrg. 107-472, pp. 4-5.
At that same hearing, Office of Management and Budget
Director Mitch Daniels was more circumspect in his testimony
than Fleischer had been as he described the administration's
---------------------------------------------------------------------------
position:
As the President has said from the beginning and Governor
Ridge has said, the current arrangement might remain the
preference of the administration or it might change. The
administration is very open to alternative arrangements and
they are being looked at actively, as they have been from the
outset. The national strategy that Governor Ridge's office is
working on, we will speak to this and may well make
recommendations to the President about an evolution of the
initial organizational structure.\22\
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\22\ S. Hrg. 107-472, p. 31.
Senator Bob Graham noted at the hearing that the White
House had asked the Senate to ``defer pursuing'' Senate
Governmental Affairs Committee Chairman Lieberman's legislation
several months before to allow Governor Ridge time to assume
his position and to deal with pressing issues in the wake of
the attacks. However, Senators' discussion at the hearing
reflected a strong desire to move ahead with some type of
reorganization legislation even without the blessing of the
White House. In his oral testimony, former Senator Warren
Rudman, cochair of the Hart-Rudman Commission, suggested
consolidating a few Federal Government functions at first--what
he termed ``the non-strategic, non-intelligence, non-law
enforcement operation consolidated,'' essentially Federal
response efforts and border protection.\23\
---------------------------------------------------------------------------
\23\ S. Hrg. 107-472, pp. 24-25.
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At the beginning of May 2002, Senators Lieberman, Specter
and Lindsey Graham introduced S. 2542, which built on the
original Lieberman-Specter bill, to incorporate additional
legislative ideas that had come to the fore as the debate
continued. Representative Thornberry introduced a related bill
in the House--H.R. 4660--with a bipartisan group of original
cosponsors, including Representatives Jim Davis, Jim Gibbons,
Jane Harman, Tim Roemer, Christopher Shays, and Ellen Tauscher.
Despite this activity, congressional consensus on broad
homeland security reorganization remained elusive.
Nonetheless, Congress continued to move legislation
addressing homeland security functions. For example, in May,
2002, the Enhanced Border Security and Visa Entry Reform Act of
2002 \24\ was enacted, authorizing increases in Immigration and
Naturalization Service investigators and authorizing
information sharing and instituting reforms in several visa
programs. In the course of House debate, Judiciary Committee
Chairman James Sensenbrenner noted future plans for
reorganization of immigration functions, saying: ``[Later], we
will be dealing with the restructuring and reorganization of
the Immigration and Naturalization Service, which is the most
dysfunctional agency in the Federal Government.'' \25\ This
particular sentiment was echoed by Senator Edward Kennedy, who
noted that he and others had promoted previous efforts to
restructure the Immigration and Naturalization Service (INS).
Neither Representative Sensenbrenner's nor Senator Kennedy's
remarks raised comprehensive reorganization legislation as the
vehicle for change.\26\
---------------------------------------------------------------------------
\24\ P.L. 107-173.
\25\ Representative James Sensenbrenner, ``Enhanced Border Security
and Visa Entry Reform Act of 2001,'' House debate, Congressional
Record, December 19, 2001, H10475.
\26\ Senator Edward Kennedy, ``Enhanced Border Security and Visa
Entry Reform Act of 2001,'' remarks in the Senate, Congressional
Record, April 12, 2002, S2609.
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Reorganization Accelerates
Unbeknownst to Congress, the administration had begun to
develop its own plan for reorganization of executive branch
agencies. A small group of administration staff met frequently
with senior White House officials to determine what components
of the Federal Government should be included in the new
department. Secrecy was maintained to prevent development of
bureaucratic opposition similar to that which had stifled
border reorganization.\27\
---------------------------------------------------------------------------
\27\ Glasser and Grunwald.
---------------------------------------------------------------------------
On June 6, 2002, President Bush publicly reversed the
administration's previous opposition to the establishment of a
new department with the release of his draft proposal for ``The
Department of Homeland Security.'' The administration's vision
of DHS was actually broader and more complex than original
plans discussed by the Hart-Rudman Commission or embodied in
congressional proposals. The administration's change of
position fundamentally altered the political landscape facing
legislative proposals to reorganize government to deter and
better prepare for potential future terrorist attacks. There
was momentum for action beyond the administration's initial
steps. That momentum had been offset by a desire in some to see
if those initial steps would be adequate, and a reluctance in
others in the midst of a time of crisis to resist an
administration that was very popular, and in some cases with
which they were politically aligned. With the administration
staking out a position in favor of a more extensive
reorganization than embodied in the leading congressional
proposals, those offsetting forces largely dissipated. Those
who had been pushing for change were suddenly no longer
debating the need to change, but were left to debate the
appropriate extent of those changes--a very different topic.
Days after the administration announced its proposal to
establish a new department, House and Senate majority and
minority leadership had established a framework plan for
action. The House would introduce the President's proposed
legislation and refer it to individual committees of
jurisdiction. After a limited period of time, a final markup
would be conducted by a House Select Committee on Homeland
Security, headed by House Majority Leader Richard Armey. On
June 13, 2002, Senator Majority Leader Tom Daschle outlined the
Senate's strategy for passing the bill, which was based on
considering an amendment to S. 2452 in July, then potentially
conferencing legislation with the House in August, and voting
on a final package in September. He emphasized, however, a
desire ``to move deliberately, carefully, taking into account
all the ideas that will be offered by the committees and by
members.'' \28\ Even so, before a legislative draft had even
been received, a suggested deadline of September 11, 2002, for
completion of legislative action had been floated by House
Minority Leader Richard Gephardt.
---------------------------------------------------------------------------
\28\ CQ Congressional Transcripts, ``Senate Majority Leader Daschle
Holds News Conference,'' June 13, 2002, at http://www.cq.com/doc/
congressionaltranscripts-452688?2.
---------------------------------------------------------------------------
Representative Harman reflected on the perceived importance
of White House support at a 2012 hearing looking back on the
evolution of homeland security, noting that they were willing
to accept a fundamentally different approach to reorganization
simply to accomplish what they saw as a critical need to
establish a Federal homeland security function:
As you know, I joined the hardy little band of legislators
who thought a homeland security function made sense in the
aftermath of 9/11--something far less ambitious than the plan
ultimately sketched out by then-White House chief of staff Andy
Card. We envisioned a cross-agency ``jointness'' similar to the
2004 Intelligence Reform Act structure, which the three of us,
and former Rep. Pete Hoekstra, negotiated. But I clearly recall
our decision to embrace a much bigger concept--which the White
House proposed--because that would ensure Presidential
support.\29\
---------------------------------------------------------------------------
\29\ S. Hrg. 112-612, p. 154.
---------------------------------------------------------------------------
The House Moves
The rules of the House of Representatives allow a united
majority to work its will rapidly. At the time, the House was
controlled by the President's party.
On June 18, 2002, the President submitted the legislative
draft for implementing his proposal, which was introduced on
June 24 as H.R. 5005. The bill was referred to 12 committees,
which had until July 12 to mark up and report the bill with
recommendations to a 13th committee--the House Select Committee
on Homeland Security. Nine of the 12 did so. The House Select
Committee on Homeland Security then conducted a final markup on
July 19, reporting an amended bill on a party-line vote of five
to four. The report was filed just before 2 a.m. on July 24,
and the House took up the bill under a structured rule, which
made 27 amendments in order on July 25. The bill passed the
evening of July 26 by a vote of 295 to 132.
This entire process took place in the span of 21
legislative days.
The Senate Moves
As Majority Leader Daschle had signaled, the Senate moved
at a more deliberate pace. On July 24, 2002, the Senate
Governmental Affairs Committee marked up an amendment to S.
2452 drafted by Senator Lieberman. Although the Senate
amendment was substantially similar to H.R. 5005 as introduced,
differences remained on a number of issues, including which
components would be included or excluded for the new
department, whether DHS would have a coordinating role for
homeland security policy or whether that responsibility would
lie in a separate office, and policies on civil service
protections and collective bargaining rights.
The Senate did not take up reorganization legislation
before the August recess, as it considered other legislation
such as terrorism risk insurance, several appropriations bills,
and the defense authorization bill for the coming fiscal year.
The Senate began consideration of the homeland security bill on
September 3, 2002, bringing up the Senate legislation as an
amendment to House-passed H.R. 5005.
Scores of amendments were offered as debate continued. On
September 21, the President began to publicly pressure the
Senate to complete its work on the bill through his weekly
radio address:
After less than a week of debate, the House of
Representatives passed a good bill, a bill that gives me the
flexibility to confront emerging threats quickly and
effectively. Yet after 3 weeks of debate, the Senate has still
not passed a bill I can sign. The legislation the Senate is
debating is deeply flawed. The Senate bill would force the new
Department to fight against terror threats with one hand tied
behind its back. The Department of Homeland Security must be
able to move people and resources quickly, to respond to
threats immediately without being forced to comply with a thick
book of bureaucratic rules.
Yet the current Senate approach keeps in place a cumbersome
process that can take 5 months to hire a needed employee and 18
months to fire someone who is not doing his job. In the war on
terror, this is time we do not have.
Even worse, the Senate bill would weaken my existing
authority to prohibit collective bargaining when national
security is at stake. Every President since Jimmy Carter has
had this very narrow authority throughout the Government, and I
need this authority in the war on terror.\30\
---------------------------------------------------------------------------
\30\ U.S. President (G.W. Bush), ``The President's Radio Address,''
Weekly Compilation of Presidential Documents, vol. 38 (September 30,
2002), p. 1594.
On September 23, in a public speech, the President charged
---------------------------------------------------------------------------
that when he had sought to address problems at the border:
The House responded, but the Senate is more interested in
special interests in Washington and not interested in the
security of the American people. I will not accept a Department
of Homeland Security that does not allow this president and
future presidents to better keep the American people
secure.\31\
---------------------------------------------------------------------------
\31\ CQ Newsmaker Transcripts, ``President Bush Delivers Remarks,
Trenton, N.J.'' September 23, 2002, at http://www.cq.com/doc/
newsmakertranscripts-509452?26.
After several attempts to obtain cloture and bring debate
in the Senate to a close, the Senate moved on to other business
after October 1.
In his statements, the President distilled the debate to
the discussion over civil service protections and collective
bargaining rights for Federal employees--a smaller subset of
issues than was under active consideration by the Senate. It
can be argued that in the 2002 midterm congressional elections,
the electorate in some cases saw Senate deliberations as a
delay over a non-security-related issue rather than deliberate
consideration of the broad range of issues before the Senate,
or that the debate was less important than passage, and that
this interpretation was a factor in some Republican victories
in House and Senate races.
The Lame Duck
The 107th Congress returned for a lame duck session after
the elections, with Republican majorities in both Chambers in
the 108th Congress on the horizon. Another version of
legislation to create the Department of Homeland Security--H.R.
5710--was introduced in the House on November 12, and,
operating under a special rule that allowed no amendments,
passed it the next day 299 to 121.
Majority Leader Armey described the product and process
during the debate on the rule:
Mr. Speaker, . . . we have waited upon the other body in
terms of our hopes to have this work completed, and just last
Friday the President again challenged Congress to work on this
bill. During this period of time, from last Friday until today,
we have had extensive consultation between Members of this body
on the select committee, the committee[s] of jurisdiction, the
President, Members of the other body, and all of the committees
that have jurisdiction on this bill.
In light of some of the concerns that we knew were fairly
well known to us on the other side of the building, we were
able to very quickly move through those issues that still
remain, fully vet them with all interested parties, including
the committees of jurisdiction in both bodies, and work out
what we believe will be in the form of the bill before us right
now a bill that can comfortably pass both bodies and be sent to
the President for signature.
I should mention, Mr. Speaker, that this bill is
essentially the same bill that was passed by the House of
Representatives last July. There have been a few modifications
that have been made to the bill but nothing that has not been
fully vetted with the committees of jurisdiction and little
that Members of this body will find objectionable.\32\
---------------------------------------------------------------------------
\32\ Representative Richard Armey, ``Homeland Security Act of
2002,'' House debate, Congressional Record, November 13, 2002, H8699.
Representative Thornberry, having helped lead
reorganization efforts prior to and after 9/11, added this
---------------------------------------------------------------------------
perspective:
Mr. Speaker, having worked on this issue for close to 2
years, I have had many doubts that it would ever come to this
point; but now I believe it will happen.
This is not a perfect bill, and it is relatively easy for
me and others to find fault, ways that we wish it would be
different. But all of those individual differences we may have
with provisions are no competition in my mind to the fact that
time is slipping by. If we do not do it this week, we are at
least 3 months further along, 3 months during which our enemies
are plotting and planning against us, more time during which we
are not as prepared as we could and should be, more months
where we are not making preparations to protect ourselves.
Time is a critical factor. Just yesterday we had another
threat, and whether it is bin Laden's voice or not, it is clear
it is someone who intends to kill more Americans. He is very
explicit in the threat. We cannot sit by and have differences
over this provision or that provision keep us from acting.\33\
---------------------------------------------------------------------------
\33\ Representative William Thornberry, ``Homeland Security Act of
2002,'' House debate, Congressional Record, November 13, 2002, H8700.
Senator Thompson offered the text of House-passed H.R. 5710
as an amendment to the House-passed H.R. 5005, succeeded in
getting cloture, defeated attempts to alter the amendment, and
amended H.R. 5005 passed the Senate on November 19, 2002. On
November 22, the House agreed by unanimous consent to the bill
as it passed the Senate. President Bush signed the bill into
law as the Homeland Security Act of 2002 \34\ on November 25.
---------------------------------------------------------------------------
\34\ P.L. 107-296.
---------------------------------------------------------------------------
After Enactment
On the day the bill was signed, White House press secretary
Fleischer sought to lower expectations and noted that patience
would be required, saying that it would take ``a couple of
years'' to build the capacity of the new department, stating
``It's unreasonable to expect that because a new department has
been created, America will change overnight.'' \35\
---------------------------------------------------------------------------
\35\ White House Press Secretary Ari Fleischer, from CQ Newsmaker
Transcripts, ``White House Holds Regular News Briefing,'' November 25,
2002.
---------------------------------------------------------------------------
With the enactment of the Homeland Security Act, a very
ambitious schedule to stand up the department went into place,
requiring the department to be established in 60 days and for
the major operational components to be transferred by March 1,
2003. Transitions were to be completed by September 1, 2003.
Almost 10 years later, retired Coast Guard Commandant
Admiral Thad Allen noted in testimony the complications this
schedule posed for the new department:
The legislation was passed between sessions of Congress, so
there was no ability for the Senate to be empaneled and confirm
appointees, although Secretary Ridge was done I believe a day
before he was required to become the Secretary. We moved people
over that had already been confirmed because we could do that.
And it took up to a year to get some of the other senior
leaders confirmed.
We were in the middle of a fiscal year. There was no
appropriation, so in addition to the money that was moved over
from the legacy organizations from the Department where they
were at, some of the new entities, we had to basically
reprogram funds from across government. It was a fairly chaotic
time to try and stand up the organic organization of the
Department and put together a headquarters. Emblematic of that
would be the location of the Department that still exists, the
Nebraska Avenue complex, and the unfortunate situation where we
are right now where we have been able to resolve the St.
Elizabeths complex there.
Because of that, what happened was we had the migration of
22 agencies with legacy appropriations structures, legacy
internal support structures, different shared services, and
different mission support structures in the Departments where
they came from. And because of that, a lot of the resources
associated with how you actually run the components or need to
run the Department rest in the components and still do today.
And I am talking about things like human resource management,
information technology (IT), property management, and so forth,
the blocking and tackling of how you have to run an agency in
government.\36\
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\36\ S. Hrg. 112-612, p. 48.
Congress was coming to grips with its own ``blocking and
tackling'' as it began to consider how to oversee the new
department. This was not an unexpected challenge. The day the
administration announced its plan for the new department, House
Republican Conference Chairman J.C. Watts noted that Congress
had, to that point, held 125 hearings on homeland security
since 9/11.\37\
---------------------------------------------------------------------------
\37\ Geoff Earle and Mark Wegner, ``Turf Battle is on in Congress
Over New Homeland Defense Agency,'' Government Executive, June 7, 2002.
---------------------------------------------------------------------------
On November 14, 2002, the House Republican Conference
passed a resolution supporting amendment of the House rules
``to consolidate the authorization and appropriations
processes'' for homeland security in the House. On December 16,
2002, House Republican leaders began to meet to determine how
to conduct oversight of the new department.
The 108th Congress and Beyond
While debates would continue on committee reorganization
and jurisdiction, once the department stood up in 2003,
congressional attention began shifting to conducting oversight
of the new department rather than debating who should take the
lead. The transition process created the administrative
challenges noted in Admiral Allen's testimony above. Vacancies
in management and support roles led to slow responses to
congressional inquiries. Former DHS Inspector General Richard
Skinner testified: ``We brought over all of the operational
aspects of 22 different agencies, but we did not bring the
management support functions to support those operations.''
\38\ Conceptual differences remained over the role of
management: How strong should the secretary's office be, versus
how autonomous should the operational components be? As the
department stood up, shortfalls in needed operating funds for
the Transportation Security Agency became clear and the FY2004
budget request--its first--came to Congress with no
justification documents to speak of.\39\ There was much for
Congress to oversee.
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\38\ S. Hrg. 112-612, p. 51.
\39\ Dyer interview.
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Analysis of the Conditions that Affected Congressional Action
The story of the creation of DHS illuminates several
factors that affect the flow of legislation and what can drive
Congress to act in exceptional circumstances. The role of
Congress in our system of government, and the functions of
congressional committees, calendars, and leadership combine to
form the underlying mechanism in which legislation proceeds or
stalls.
This mechanism does not operate in a vacuum. Part of the
congressional role is its oversight relationship with the
executive branch, and the political space that it shares with
the President, especially at times when the public looks to the
Federal Government for action.
The legislative mechanism, in the case of the Homeland
Security Act, was acted on by two significant external events:
the 9/11 attacks, and the administration's announcement of its
support or establishment of DHS. The impact of these forces
accelerated the legislative process. Congress and the
department have struggled with the legacy of this acceleration
ever since.
The Congressional Mechanism
As the legislative branch, Congress is charged with passing
laws on the policy issues facing the United States. As a
representative body, Congress is most driven to act on policy
issues on which the U.S. citizenry focuses its attention. Prior
to the 9/11 attacks, the issue of homeland security was just
one of many topics of discussion, generally confined to the
committees of central jurisdiction and not one on a fast track
to legislative action. When the attacks shocked the U.S.
citizenry, Congress was therefore cued to move legislation in
response to it, although the complex policy issue of broad
homeland security reorganization did not move as readily as the
specific fixes for the airline industry, appropriations, and
other elements.
committees
Part of the reason the reorganization effort did not move
through the process to floor consideration in the 8 months
following 9/11 was the congressional committee structure. The
Senate held numerous committee hearings on reorganization for
homeland security in part because Lieberman was able to mark up
his own bill--he chaired the committee that had predominant
jurisdiction over its content. In the House, Representative
Thornberry's bill went to the Committee on Government Reform.
One key difference between the way committee referrals are
handled in the House and Senate ensured the bills that moved
through the House were limited in scope. In the Senate, the
concept of predominant jurisdiction means bills are usually
referred to a single committee depending on their content. In
the House, when a bill addresses multiple issues, referrals to
multiple committees are more common. For example, Chairman
Sensenbrenner had noted the jurisdictional hurdles facing broad
reform legislation in the House during the debate on the
Enhanced Border Security and Visa Entry Reform Act of 2002,
explaining that jurisdictional issues prevented the bill from
providing more personnel for the Customs Service, or requiring
that manifests of vessels and airplanes arriving from and
departing to international locales be filed with the
immigration service.\40\ These moves, while popular, simply
could not be done by his committee's bill because they were
under the jurisdiction of other committees.
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\40\ Representative James Sensenbrenner, ``Enhanced Border Security
and Visa Entry Reform Act of 2001,'' House debate, Congressional
Record, December 19, 2001, p. H10472.
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calendars
The congressional and electoral calendars provided
relatively small windows of time to consider reorganization--if
it was going to be done, it would have to be done quickly or
wait until after the elections. As pressure built within
Congress to go beyond what the White House had done already by
mid-2002, only 6 months remained--June and July were
traditionally dedicated to moving appropriations legislation in
earnest and August is historically a month when Members are not
at the Capitol. With very little floor time available and the
partisan pressures of the election intruding, moving
legislation would require significant pressure, which the White
House announcement provided. Even with that impetus, the bill
would not ultimately pass until after the election.
leadership
The power of the leadership of Congress is the power to set
the agenda. In the House during the initial debate over the
appropriate response to 9/11, one could argue that the
leadership was more willing to give a President from its own
party time and authority to manage homeland security and
potential reorganization as he saw fit, while at the same time,
the Senate majority leadership was comfortable exploring
alternative approaches without concern for how it might reflect
on the administration.
Although the majority may decide what comes to the floor of
the House or Senate when, and under what terms it will be
debated or amended (if at all), the minority's decision to
cooperate (or not) and its coordination of a message can be
significant in shaping the outcome, even if their proposals are
voted down. In the wake of the shock of 9/11, the leadership in
both Houses initially set a bipartisan tone, and procedural
cooperation was given, which allowed bills to move swiftly.
When the Bush administration shocked the system again by
announcing its support for establishing a Department of
Homeland Security, the accelerated procedures for consideration
of the bill initially received bipartisan support. House
Minority Leader Dick Gephardt suggested passage of the bill by
September 11 should be a goal--a proposal that was embraced by
the leaders of the other party. However, this change in tone
would not survive the process of moving the bill through the
House.
As the accelerated process played out, the leadership of
the House had significant control over the content of what
would ultimately become the Homeland Security Act, and
exercised that control to create a package that largely
conformed to the President's wishes. The House majority leader
introduced the President's legislation, and set the terms for
expedited committee consideration. The majority party members
of the ad hoc committee that ultimately produced the
legislation were the House majority leader, the majority whip,
the chairman and vice chairman of the Republican conference,
and the chairman of the majority party's leadership
meetings.\41\ Those members were the five votes to report out a
bill that largely rejected the changes proposed by the nine
committees that had marked up their portions of the bill. The
Rules Committee then produced a rule that ensured swift floor
debate and largely protected the content of the legislation,
making only selected amendments in order.
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\41\ The minority party was represented by the House minority whip,
the chairman and vice chairman of the Democratic Caucus, and the
assistant to the minority leader.
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Senate leadership wound up with less of a role in
determining the content of the Homeland Security Act for
several reasons--primarily because of the different way
leadership power is exercised in the Senate as opposed to the
House. For example, there is no rules committee that can limit
amendments or debate in the Senate--so the Senate majority
leader had much less leverage with which to work to move
legislation. As the Homeland Security Act experience shows, the
absence of minority support for cloture motions can stifle
legislation. Where the House can push something through on a
party-line vote, in the Senate, such plans are usually not
realistic, given the power of an individual Senator to stall
the process.
The plan for action laid out by Majority Leader Daschle in
June had proven overly optimistic, given the crowded Senate
agenda, and the limited amount of time available prior to the
election. The Senate as a result responded to the work product
of the House that was based on the White House proposal. The
House-passed bill arrived in the Senate days before the August
recess, and was only under consideration for roughly 2 weeks
before the impending elections made compromise more difficult
and the process stalled.
After the elections, the House and Senate leadership
negotiated the final version of the bill--again, based on the
House legislation--with the outgoing Senate majority in a
significantly weakened position. That bill took 2 legislative
days to pass the House, and 4 in the Senate. No attempts to
amend the leadership-negotiated package were successful.
Outside Congress
The existing executive branch structure laid the groundwork
for the initial reorganization discussion--without homeland
security functions being carried out across the government,
there would have been no discussion of consolidation in the
first place. The Gilmore Commission and Hart-Rudman Commission
had pointed out to Congress the broad distribution of homeland
security responsibility, and some in Congress were mulling
solutions to that before 9/11. As noted above, dissatisfaction
with border security agencies stretched back well before 9/11,
and in the aftermath the INS was denounced on the House floor
as being ``absolutely incompetent.'' \42\ Without congressional
concern about structural inefficiencies to face the threat and
dissatisfaction with the performance of some homeland security
components, reorganization may not have so readily gained
traction.
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\42\ Representative Tom Tancredo, ``Campaign Finance Reform;
Immigration Reform,'' Special Orders, Congressional Record, February
12, 2002, pp. H274-H279.
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As often occurs in a time of national concern, the focus
was on the White House for leadership. The ``bully pulpit'' of
the White House at the time and the role of the President as a
singular national executive--rather than a deliberative body--
placed him in a unique position to effectively define the
national discussion. The President's address before Congress on
September 20, 2001, the establishment of Governor Ridge's
office in the White House, and the request for Congress to hold
off on departmental reorganization at first stalled the gradual
momentum that had been building in Congress toward
reorganization. In September 2002, the administration's framing
of the debate as being over labor issues narrowed the public
debate to partisan issues surrounding the department's
workforce when much else remained to be discussed.
Conclusion
As the months unspooled and the 9/11 attacks began to move
into the realm of historical rather than current events, even
their powerful unifying effect could be seen to fade. By the
midterm elections in 2002, congressional candidates faced
negative ads that linked them to Osama bin Laden and Saddam
Hussein because they held a different position on given
security issues--an action that would have seemed unthinkable
to most in the days after the attacks.\43\ In 2004 and 2005,
the power of congressional committees was evident in the
decisions that were made on congressional organization and
oversight of the new department. Internal debates on DHS
oversight continue today.
---------------------------------------------------------------------------
\43\ See Andy Barr, ``Cleland Ad Causes Trouble For Chambliss,''
Politico, November 12, 2008, at http://www.politico.com/news/stories/
1108/15561.html, and William M. Welch, ``Republicans Using Iraq issue
to Slam Election Opponents,'' USA Today, October 13, 2002, at http://
usatoday30.usatoday.com/news/washington/2002-10-13-iraq-politics_x.htm.
---------------------------------------------------------------------------
As this report outlines, the existing congressional debate
on how to best organize government to provide homeland security
was accelerated by the 9/11 attacks and by the Bush
administration reversing its opposition to the establishment of
a new department. The power of congressional leadership to
control debate (especially in the House), the leverage of the
executive, and the pressures of the electoral calendar
significantly contributed to the White House's ability to
preserve much of the administration's original proposal
throughout the legislative process.
However, it was argued by some at the time that this speedy
process resulted in the establishment of a less capable
department, and it has been argued by some since that the
department we have today may not be the ideal structure to
promote homeland security. A more thorough debate at the time,
taking advantage of the in-house expertise of congressional
committees, could have developed a broader consensus over the
structure of the department and the role of departmental
management. Lingering questions over basic issues such as how
to house the headquarters of the department have some of their
roots in the lack of resolution to questions of just how robust
the management cadre of the department should be. The Homeland
Security Act's wholesale transfer of components and unresolved
congressional tensions over committee jurisdiction have
complicated reauthorization efforts.
A more deliberate process, of course, could have stalled
due to bureaucratic infighting, and no one can know how the
last decade could have been different if DHS had been
structured differently or not been stood up at all. The purpose
of this kind of retrospective examination is not to determine
what Congress should or should not have done--on the contrary,
it is to understand how the Congress may act in crisis because
of its structure and place in government. When Congress again
finds itself in the position of being pressed to act with
urgency on complex, long-term organizational issues, it may be
worth considering the body's susceptibility to these outside
shocks, which may speed an idea into law, but leave unresolved
issues and their avoidable consequences in its wake.
Like Clockwork: Senate Consideration of the National Defense
Authorization Act
Colleen J. Shogan
Deputy Director, CRS
----------
For the past 53 years, the Senate has passed annually a
National Defense Authorization Act (NDAA). At a time
when legislative activity in Congress has diminished,
the Senate continues to produce, without fail, a
mammoth annual bill that sets policy and authorized
spending levels for the U.S. military and the Pentagon.
How does this happen? What role do the practices,
procedures, and traditions of the Senate Armed Services
Committee (SASC) play in this unbroken record? This
report describes how the Senate Armed Services
Committee debates, drafts, and amends the NDAA.
Specific characteristics and practices unique to SASC
are discussed. In Fiscal Year (FY) 2011, the Senate
almost failed to pass the NDAA due, in part, to the
controversial debate concerning the ``Don't Ask, Don't
Tell'' (DADT) policy. A case study analyzes how SASC
overcame the challenges associated with the DADT debate
and relied upon its decades of fail-safe practices and
traditions to achieve Senate passage. The purpose of
this examination is to analyze the legislative
procedures of the SASC and determine if the norms and
operations of the committee could prove instructive to
other legislative arenas in Congress.
Political scientists and congressional commentators have
characterized the contemporary U.S. Senate as an institution
crippled by gridlock, obstruction, and increased partisan
battles.\1\ Nonetheless, for the past 53 years, the Senate has
never failed to pass a National Defense Authorization Act
(NDAA). The Senate has found ways, often creatively, to avoid a
legislative impasse on NDAA. The subject of national defense is
not without controversy. Through Vietnam, the cold war, two
wars in Iraq, the global war on terrorism, Iran Contra,
Tailhook, and numerous defense acquisition scandals, the NDAA
has persevered. How does the NDAA endure, despite what many
would consider highly improbable odds?
---------------------------------------------------------------------------
\1\ Gregory Koger, Filibustering: A Political History of
Obstruction in the House and Senate (Chicago: University of Chicago
Press, 2010); Barbara Sinclair, Unorthodox Lawmaking: New Legislative
Procedures in the U.S. Congress (Washington: CQ Press, 2000) and Sarah
Binder and Steven S. Smith, Politics or Principle: Filibustering in the
United States Senate (Washington: The Brookings Institution, 1997).
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This case study will examine a recent episode in which
enactment of the NDAA was threatened.\2\ The repeal of the U.S.
military's ``Don't Ask, Don't Tell'' (DADT) policy precipitated
a potential breaking point in which Senate passage of the
FY2011 NDAA seemed unlikely.\3\ However, despite the
controversy concerning the legislation, the FY2011 NDAA became
law. What legislative processes and practices enabled this to
occur? How does the Senate Armed Services Committee (SASC)
manage to produce a comprehensive authorization bill annually
and facilitate its passage in the Senate, particularly in an
era when ``filibusters and the prospect of filibusters shape
much of the way in which the Senate does its work on the
floor''?\4\
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\2\ This case study is based on research originally published as a
book chapter in an edited volume. See Colleen J. Shogan, ``Defense
Authorization: The Senate's Last Best Hope,'' Party and Procedure in
the United States Congress, ed. Jacob Straus (Lanham, MD: Rowman &
Littlefield Publishers, 2012), pp. 195-215. The essay drew on
interviews with numerous congressional staffers who work or worked on
defense issues with the Senate Armed Services Committee. The author
also previously worked for a Senator who served on the Armed Services
Committee.
\3\ A more recent and analogous example is the legislative debate
concerning sexual assault in the military. The Senate Armed Services
Committee debated various reform proposals during consideration of the
FY2014 NDAA. Several hearings, at both the full and subcommittee
levels, were held on the issue from March through June 2013. SASC
Personnel Subcommittee Chair Kirsten Gillibrand added language in
subcommittee markup to remove the chain of command from prosecution of
felony crimes. In full committee markup, Chair Carl Levin's amendment
was adopted, which changed the Gillibrand provision but required a
senior officer in the chain of command to review any decision not to
prosecute. It also made retaliatory action against a sexual assault
victim a crime. When the NDAA reached the floor, both Senator
Gillibrand and Senator Claire McCaskill offered amendments. Senator
McCaskill's amendment aimed at strengthening Senator Levin's provisions
but did not remove the chain of command from decisions concerning
prosecution. A failed cloture vote on the underlying NDAA prevented
votes on both proposals when the Majority Leader filled the amendment
tree, but compromise language concerning military sexual assault
appeared in the final ``pre-conferenced'' version of the NDAA. The
Senate voted 84 to 15 to concur with the negotiated defense
authorization language (H.R. 3304) in late December. In March 2014, the
Senate debated the Gillibrand and McCaskill proposals as standalone
bills. The Gillibrand bill (S. 1752) did not receive the required 60
votes for cloture; Senator McCaskill's legislation (S. 1917) received
cloture and subsequently passed the Senate.
\4\ CRS Report RL30360, Filibusters and Cloture in the Senate, by
Richard S. Beth and Valerie Heitshusen.
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FY2011 NDAA: Ending ``Don't Ask, Don't Tell''
Pressure to end the military ban on openly gay service
members intensified after the 2008 election. Presidential
candidate Barack Obama promised publicly during the campaign
that he would end the practice of ``Don't Ask, Don't Tell'' and
support subsequent integration.\5\ As President, Obama included
a statement of support for repeal in his 2010 State of the
Union Address.\6\ Soon thereafter, the chairman of the Joint
Chiefs of Staff, Admiral Mike Mullen, testified before the
Senate Armed Services Committee. In his opening remarks, Mullen
stated that DADT ``forces young men and women to lie about who
they are in order to defend their fellow citizens.'' He
continued, ``For me, personally, it comes down to integrity.''
\7\ At the hearing, Mullen also revealed that a Pentagon report
analyzing the potential effects of repealing the ban was
scheduled for completion in December 2010.
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\5\ ``Obama: Repeal of `don't ask, don't tell' possible.''
Associated Press, April 4, 2008, http://www.nbcnews.com/id/24046489/
#.U0wnkYWW_Qo.
\6\ ``Remarks by the President in State of the Union Address.''
January 27, 2010, http://www.whitehouse.gov/the-press-office/remarks-
president-state-union-address.
\7\ U.S. Congress, Senate Committee on Armed Services, To Receive
Testimony Related to the `Don't Ask, Don't Tell' Policy, 111th Cong.,
2d sess., February 2, 2010.
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The House of Representatives moved quickly, including
repeal language during floor consideration of the FY2011 NDAA.
On May 28, the House voted on final passage (229-186).\8\ On
the same day, Senator Joseph Lieberman successfully offered an
amendment in the closed full Senate Armed Services Committee
markup of the FY2011 NDAA to add DADT repeal language to the
bill. The amendment was adopted by a vote of 16 to 12; SASC
later approved its marked-up version of the NDAA with a vote of
18 to 10.\9\ For a bill that routinely garners unanimous or
near-unanimous support moving out of committee, the split
support in markup indicated that Senate floor adoption might
prove challenging.
---------------------------------------------------------------------------
\8\ House roll call vote no. 336, Congressional Record, May 28,
2010, p. H4199.
\9\ U.S. Congress, Senate Committee on Armed Services, National
Defense Authorization Act for Fiscal Year 2011, 111th Cong., 2d sess.,
June 4, 2010, S. Rept. 111-201 (Washington: GPO, 2010).
---------------------------------------------------------------------------
A cloture vote on the motion to proceed, requiring the
support of 60 Senators, failed on September 21 by a tally of 56
to 43.\10\ The prognosis for Senate passage of the FY2011 NDAA
appeared unlikely. Since the bill had never proceeded to floor
consideration, no Senators had benefited from the opportunity
to offer amendments to the NDAA, as was routinely the case.
With an extended recess planned before the November election,
the only chance of NDAA passage was during the post-election
``lame duck'' session. The typical 2-week floor process for the
NDAA, which had previously allowed all Senators to file
amendments to the bill, seemed out of the question in an
abbreviated session at the end of a Congress. Given the
opposition to the repeal of DADT and the proposed restrictions
on the number of amendments that would be considered, the
legislation's prospects seemed dim.
---------------------------------------------------------------------------
\10\ Senate roll call vote no. 238, Congressional Record, September
21, 2010, p. S7246.
---------------------------------------------------------------------------
However, the bill's prospects changed when the Pentagon
released a survey of military service members on November 30,
2010.\11\ Its release was followed by 2 days of hearings in the
SASC on the report. While both proponents and opponents of the
repeal cited findings that supported their arguments, the
survey showed that more than two-thirds of service members did
not oppose openly gay men and women serving in the
military.\12\ Those who supported the repeal of DADT believed
that this finding would enable passage before adjournment.
Nonetheless, when another cloture vote on the motion to proceed
was taken, the tally fell 3 votes short of the required 60
needed to proceed to consideration of the NDAA on the
floor.\13\
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\11\ The Honorable Jeh Charles Johnson and General Carter F. Ham,
U.S. Army, Report of the Comprehensive Review of the Issues Associated
with a Repeal of ``Don't Ask, Don't Tell,'' Department of Defense,
Washington, DC, November 30, 2010, http://www.defense.gov/home/
features/2010/0610_dadt/DADTReport_FINAL_20101130%28secure-
hires%29.pdf.
\12\ U.S. Congress, Senate Committee on Armed Services, To receive
testimony on the report of the Department of Defense Working Group that
conducted a comprehensive review of the issues associated with a repeal
of section 654 of title 10, United States Code, ``Policy Concerning
Homosexuality in the Armed Forces,'' 111th Cong., 2d sess., December 2,
2010.
\13\ Senate roll call vote no. 270, Congressional Record, December
9, 2010, p. S8683.
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The strategic maneuvering enabled the repeal of DADT to
pass the Senate on December 18, 2010, with a vote of 65 to
31.\14\ Even though the controversy over DADT had been removed
from consideration of the FY2011 NDAA, there was very little
time left before the adjournment of the 111th Congress. The
only realistic way forward was a final effort to pass the NDAA
by unanimous consent on the Senate floor. The NDAA's final
passage had never been secured previously by unanimous consent.
---------------------------------------------------------------------------
\14\ Senate roll call vote no. 281, Congressional Record, December
18, 2010, p. S10684.
---------------------------------------------------------------------------
Senator Lieberman and Senator Susan Collins decided to file
stand-alone repeal legislation, S. 4022. Besides the inclusion
of the DADT repeal language, the FY2011 NDAA had been fraught
with controversy concerning the process for considering
amendments, and also contained a controversial provision
concerning abortions in military hospitals. Senators Collins
and Lieberman reportedly believed that if they could secure a
vote before adjournment on the stand-alone repeal, they stood a
better chance for passage. It was possible that a separate
legislative vehicle for DADT repeal would give the NDAA a
better chance to proceed to Senate floor consideration.
Realizing this might become the only option, SASC staff had
begun to work with House Armed Services Committee staff weeks
earlier to prepare an abbreviated ``pre-conference'' version of
the NDAA. All controversial provisions, including the language
that would have allowed privately funded abortions in military
hospitals, were removed. The danger of moving the NDAA by
unanimous consent on the Senate floor was that any Senator
could object and prevent passage.\15\ Working closely with the
minority, SASC Chair Carl Levin moved toward crafting a bill
that he believed would not raise an objection to a motion to
pass the bill by unanimous consent. On December 22, the FY2011
NDAA passed the Senate by unanimous consent. The exchange on
the floor between Chair Carl Levin and Ranking Member John
McCain provides commentary concerning the unprecedented
procedural scenario required for the bill's passage:
---------------------------------------------------------------------------
\15\ For more information about unanimous consent agreements on the
Senate floor, see CRS Report RS20594, How Unanimous Consent Agreements
Regulate Senate Floor Action, by Richard S. Beth.
Mr. LEVIN. Mr. President, in legislative session and in
morning business, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 717,
H.R. 6523, the Department of Defense authorization bill, that a
Levin-McCain amendment that is at the desk be agreed to, the
bill, as amended, be read the third time and passed, the
motions to reconsider be laid upon the table, with no
intervening action or debate, and that any statements related
---------------------------------------------------------------------------
to the bill be printed in the Record.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. McCAIN. Reserving the right to object, and I will not
object, a lot of people may not understand that unanimous
consent request that was just made by the chairman of the Armed
Services Committee.
Am I correct, I ask my friend from Michigan, that this is
in order to pass the National Defense Authorization Act? We
have gone, I believe, 48 years and passed one, and there are
vital programs, policies, and pay raises for the men and women
in the military and other policy matters that are vital to
successfully carrying out the two wars we are in and providing
the men and women who are serving with the best possible
equipment and capabilities to win those conflicts. Am I correct
in assuming that is what this agreement is about?
Mr. LEVIN. The Senator from Arizona is correct. It is the
bill--slightly reduced to eliminate some of the controversial
provisions, which would have prevented us from getting to this
point, but this is the Defense authorization bill, and 90 to 95
percent of the bill is the bill we worked so hard on in
committee on a bipartisan basis. I am very certain that our men
and women in uniform, as this Christmas season comes upon us,
will be very grateful indeed that we did this in the 49th
year--and if the House will move swiftly today and pass this
bill, as we have done in the previous 48 years--passed an
authorization bill--which is so essential to their success.
Mr. McCAIN. I will not object.\16\
Although the Senate had to resort to unconventional
mechanisms, the controversy generated by the repeal of ``Don't
Ask, Don't Tell'' did not derail passage of the FY2011 NDAA.
The factors that enabled passage of previous defense
authorization bills played an important role. In particular,
when it came down to the final days before adjournment and it
was apparent that the FY2011 NDAA could only move through the
Senate by unanimous consent, staff needed to rely upon trusted
bipartisan relationships to make the negotiations work.
Committee leadership also worked diligently to ensure final
passage on a carefully negotiated, abbreviated bill.
---------------------------------------------------------------------------
\16\ Senator Carl Levin and Senator John McCain, Senate debate,
Congressional Record, December 22, 2010, p. S10936.
---------------------------------------------------------------------------
In a time period in which enacting authorization bills has
become more challenging, how has the Senate continued to pass a
national defense bill annually?\17\ The answer to this question
is not a simple one. A complex mixture of committee traditions,
processes, and a sense of a common mission concerning the
overall purpose of the NDAA contribute to the outcome. These
elements appear to work simultaneously. Thus, if one critical
practice or process is altered, the outcome of future defense
authorization bills could be affected. Subsequent sections
provide a detailed description of Senate consideration of the
NDAA and an analysis of several important factors that
contribute to the consistent record of Senate NDAA passage.
---------------------------------------------------------------------------
\17\ See David Price, ``The Advantages and Disadvantages of
Partisanship,'' The Boston Review, May/June 2011.
---------------------------------------------------------------------------
Senate Armed Services and the NDAA
To understand why the defense authorization bill passes the
Senate every year, it is important to comprehend SASC's routine
processes for considering the legislation.\18\
---------------------------------------------------------------------------
\18\ For a history describing the origins of the NDAA, see Raymond
H. Dawson, ``Congressional Innovation and Intervention in Defense
Policy: Legislative Authorization of Weapons Systems,'' American
Political Science Review, vol. 56, no. 1 (March 1962), pp. 42-57. For
another depiction of defense committees at work in Congress, see Pat
Towell, ``Congress and Defense,'' in Congress and the Politics of
National Security, ed. David P. Auerswald and Colton C. Campbell (New
York: Cambridge University Press, 2011).
---------------------------------------------------------------------------
The submission of the President's budget request is the
initiating event. In early February, the President submits a
budget request to Congress that includes the estimated cost of
defense for the following fiscal year. At that time, SASC
staffers receive the request and begin to analyze and evaluate
the President's request for the allocation of defense dollars
and resources. The Pentagon routinely sends briefers to
Congress that week, who help both SASC and personal office
military legislative assistants (known as MLAs) understand the
broad, overarching budgetary message and some specifics,
usually associated with major program changes or decisions.
These meetings take place consistent with the bipartisan
tradition of SASC; both majority and minority staff attend the
same briefings and receive the same message from the executive
branch, regardless of which party controls the Presidency or
the Senate at the time.
Soon after the budget submission, often only days after its
receipt, SASC begins a series of hearings on the budget request
and other major related issues. These hearings are an important
part of the process. The first hearing features the Secretary
of Defense and the chairman of the Joint Chiefs of Staff, who
answer overall questions concerning the Nation's security
posture, strategy, and budget challenges that may present
themselves in the coming year. This hearing is followed by a
number of more focused hearings with the combatant commanders
(such as U.S. Special Operations Command and U.S. Central
Command), the service chiefs (such as Commandant of the U.S.
Marine Corps), and the civilian department secretaries (such as
the Secretary of the U.S. Air Force) as the witnesses.
In each instance, issues concerning the geostrategic
environment and the President's budget request are raised, as
well as other concerns that might require legislative language
in the upcoming fiscal year defense authorization bill. Other
full committee hearings, often focused on intelligence or
current U.S. military operations abroad, also take place in
February and March. The full committee's hearing schedule is
filled in the months of February, March, and April to guarantee
that all components of the military have a chance to testify
and that all Senators have a chance to ask questions about
their policy and program recommendations. The pace is rapid,
with at least one major hearing and often several hearings
scheduled for each week.
Given the high level of substance and the expansive
territory each hearing must cover, the amount of preparation is
considerable, both for professional committee staff and the
MLAs. Given the current size of the committee, one round of
questioning is common, and if time runs out, Senators may
submit additional questions to the witnesses as QFRs (questions
for the record), generating a subsequent written response. The
motivation behind the large number of hearings, conducted
annually, is to build as comprehensive a public record as
possible with respect to the policy or budgetary issues that
may be addressed by the annual defense authorization bill.
Staffers use the hearings to flag important issues and receive
civilian and military leadership positions on those issues that
will likely require considerable discussion and debate during
consideration of the NDAA. As the bill is subsequently drafted
during the spring months, the hearing record serves as a
repository of information for Senators and staff.
In March, after the bulk of the full committee annual
hearings are completed, the subcommittee hearing season begins.
Subcommittees hold hearings concurrently with additional full
committee hearings. As one might expect, the subcommittee
hearings are more specialized, focused on their specific
jurisdictional responsibilities, and allow further probing of
issues raised at the full committee. Professional committee
staff routinely provide the chair and ranking member of the
subcommittee with a hearing schedule that combines both the
particular interests of the Senators running the committee and
the policy needs that require further scrutiny and debate. Most
subcommittees conduct at least four hearings. Since the SASC
uses the hearings as a way to build the record for the annual
defense authorization bill, Senators who want to influence the
bill in numerous areas usually find a way to attend as many
hearings as possible. The record is critical, as the SASC
treats it as a blueprint for the legislation. Issues that are
flagged in subcommittee and committee hearings routinely find
their way into the authorizing bill. Hearings can bring certain
problems to light, and the hearing record is important as a
repository of information that can inform subsequent
legislative drafting.
Hearings continue in the SASC throughout the year on a
variety of topics relevant to the military and national
security. The highest concentration of subcommittee and
committee hearings concludes in mid-May. As the hearings end,
intense preparation for the markup of the defense authorization
bill begins.
During this time, all Senators have the opportunity to make
requests to the chair or ranking member concerning the contents
of the bill. Senators usually construct a list of requests to
the committee for inclusion. Most requests ask for adjustments
to programs that have already been recommended for funding in
the President's budget. SASC staff evaluate these requests,
relying heavily on the Pentagon and the unfunded requirements
lists compiled by each of the service chiefs and occasionally
by a combatant commander. The majority's recommendations with
regard to these requests are not required to be revealed to the
minority or Members until just before the draft bill (known as
the chairman's mark) is presented to the full committee at the
beginning of markup.
As the hearings are conducted in the spring, SASC staff
work to produce a draft of the bill. Much of the work is done
collaboratively, with both majority and minority committee
staffers influencing the draft. Once the draft has been
completed and receives the approval of the chair, a weeklong
defense authorization markup is scheduled, usually near the end
of spring or in early summer. Several days before the markup,
committee staffers provide briefing binders, based on
subcommittee jurisdiction, with draft language and funding
tables with recommended authorization levels for
appropriations, for Senators on the committee and their MLAs.
Staffers from both sides of the aisle receive the briefing
books at the same time. Previously, the briefing books were not
allowed to leave the committee hearing room. MLAs who wanted to
review the books in preparation for markup remained in the
hearing room; no photocopying was allowed and electronic
transmission was not permitted.\19\
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\19\ For the FY2012 NDAA, a slight procedural change allowed MLAs
to remove the briefing book from the Armed Services committee room and
take it to the Senator's office for examination. A strict embargo of
the information contained in the books still applied, and no electronic
transmission of the books occurred.
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In the days leading up to markup, MLAs work with committee
staff to plan amendments their bosses intend to offer. If
possible, compromises are often formulated prior to markup to
ensure that fewer disagreements during the actual formal
procedure require time and attention for debate and votes.
Markup of specific portions of defense authorization begins
at the subcommittee level on a Tuesday. All six subcommittee
markups are usually conducted on Tuesday or early Wednesday. On
Wednesday afternoon, the full committee markup commences, and
lasts until the committee has finished marking up the bill.
Usually, markup finishes by Friday of the same week. During the
full committee markup, issues are raised for debate, and, if
necessary, votes are taken if such issues were not resolved at
the subcommittee level. Often, controversial issues were
identified through the hearings that occurred earlier in the
year. If there is a disagreement about a provision in the bill,
the chair may set the issue aside and instruct staff to work
with Senators with differing perspectives to reach agreement.
During closed markup, brief ``adjournments'' are common. Staff
and Senators are given the appropriate time to construct an
acceptable compromise. If such agreement cannot be reached,
formal committee votes are taken to decide what will and will
not be included in the full committee's bill and report. The
goal is to produce a committee bill in which a considerable
majority of Senators on the SASC can support to move the bill
out of markup and onto the floor for full Senate consideration.
Historically, 2 weeks of floor time were reserved in the
Senate for consideration of the defense authorization bill.
During floor consideration, hundreds of amendments are often
filed. Senators view the NDAA as a good opportunity to attach
legislative language, sometimes unrelated to defense, to a bill
likely to become law. Prior to cloture, Senate rules allow the
consideration of nongermane amendments.
Committee staffers from both sides of the aisle work with
Senators (who often do not serve on the SASC) to consider
amendments for which agreement can be achieved and included in
the bill by unanimous consent as part of what is called a
``manager's package'' of noncontroversial amendments.
Compromising with Senators who wish to amend the bill on the
floor is a time-tested stratagem; it gives Senators a stake in
the bill, thereby helping secure their votes for cloture, if
necessary, and final passage. A set of amendments from both
sides of the aisle, which may require floor votes, is usually
agreed to by unanimous consent prior to cloture. If cloture is
invoked on the bill itself, amendments must be germane.\20\ In
typical practice, the manager's package or packages move
forward through unanimous consent, occasionally even after
cloture, and then a vote for final passage is scheduled.\21\
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\20\ CRS Report 98-780, Cloture: Its Effect on Senate Proceedings,
by Walter J. Oleszek.
\21\ In recent years, however, the routine processes of floor
consideration of the NDAA described earlier have been disrupted due to
attempts to attach controversial nondefense-related legislative
language to the bill and the inability to reach unanimous consent on a
manager's package.
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After both Houses of Congress have considered and passed
the bill on the floor, conference begins. Issues on which the
House and Senate disagreed are divided into subcommittee
jurisdictions and assigned to professional committee staffers
who take the lead in the staff negotiations, with the House and
Senate each explaining their positions. The vast majority of
differences are resolved at the professional staff level.
When committee staff cannot agree to a final position, the
majority and minority staff directors try to reach a
compromise. If they cannot agree, House Members and Senators
discuss the issues at hand. Usually, there are only a small
number of issues that require compromise. Signatures on the
final conference report by a majority of conferees from the
Senate and House are the final step in the process before
sending the bill to the Chambers for final passage and then to
the President for his signature.
Why Does It Work?
The previous section describes the process in which the
Senate considers the NDAA each year. But it elicits the
question: why does it work? The rules governing passage of the
defense authorization are the same as those for any other bill
considered in the Senate. However, there are particular
practices and unique characteristics that increase the
likelihood of NDAA passage on an annual basis. These variables
influencing the outcome are distinct and often work in tandem
with each other to yield the desired outcome. Four primary
reasons explain the NDAA's repeated successes: bipartisanship,
routine committee processes, staff interactions, and closed
markups.\22\
---------------------------------------------------------------------------
\22\ In the previously published version of this essay, the 4
reasons for the NDAA's continued passage in the Senate originated from
over 20 interviews with current and former Senate Armed Services
Committee staff members and MLAs.
---------------------------------------------------------------------------
Bipartisanship
Bipartisanship plays a key role in several ways. First, the
subject matter itself is an issue that lends itself to
bipartisanship. There is a deep sense among staff that they are
working on a bill that improves the condition of those serving
in the military, and without the bill, the lives of service
members would be more difficult. There is a shared ethos of
patriotism among those who work on the NDAA, both professional
committee staff and MLAs. The inherent bipartisan belief in a
shared mission is distinctive, and may have been even more
influential in the past decade as the United States fought two
wars.
Besides the fact that both parties consider national
security a priority, defense policymaking often cuts across
partisan lines. Defense-related constituencies do not routinely
align on a partisan basis. Rather, there are often parochial
interests, such as the continued production of a weapons system
or the closing of a military base, that converge geographically
or along shared industries. Coalitions routinely arise along
axes other than partisanship.\23\
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\23\ On the relationship between geography and defense generally,
see Thomas Carsey and Barry Rundquist, ``The Reciprocal Relationship
between State Defense Interest and Committee Representation in
Congress,'' Public Choice, vol. 99 (1999), pp. 455-463.
---------------------------------------------------------------------------
The bipartisan culture of the Senate Armed Services
Committee developed incrementally over time. The chairs and
ranking members of the committee historically set the precedent
of a bipartisan approach and tone. Chairs served as an example
in how they dealt with Senators from the minority party. Strong
chairmen who believed that partisanship stopped at the water's
edge contributed to the development and growth of the
bipartisan SASC culture. Bipartisanship on the committee is
easily detected during markup of the bill, when many issues are
resolved amicably.
Bipartisanship has policy effects, as well. For amendments
to be accepted during markup or on the floor, compromises must
take place that may require the majority to incorporate the
views of the minority. Majority staff and MLAs adopt the
practice of compromising on amendments so that minority
concerns are addressed. A ``winner take all'' approach is rare.
Finally, bipartisanship guides the ``building-block''
approach to the creation of the bill. When the professional
staff work together to write the chairman's mark, they adopt a
bipartisan approach, largely including provisions agreeable to
both sides in the mark, and cautiously and infrequently
including some that are not. Controversial language is debated
during the full committee markup, and the most controversial
provisions receive votes. However, some controversial issues in
markup are deferred to floor consideration. At times, a Member
may determine that a markup vote would be unsuccessful, so a
strategic decision to file a floor amendment is made.
This practice can be contrasted to that of including a
number of controversial issues in the chairman's mark. If that
occurs, Senators must rely on the amending process in markup to
attempt removal of such measures. This can force Senators to
make an ``up or down'' decision on the mark, sometimes without
being able to vote on all controversial provisions. That
approach can prove efficient, but restricts the choices of
Senators and does not reliably result in consensus. In
contrast, the SASC's ``building-block'' methodology starts with
the premise of bipartisanship and agreement and proceeds from
that starting point to add provisions after debate.
Routine Committee Processes
Another distinctive feature of the NDAA is that the SASC
uses a routine process each year in preparing the bill. Every
year, the same hearings are held with the Secretary of Defense,
the Joint Chiefs, the combatant commanders, and service
civilian and military leaders. Markup always takes place in
late spring or early summer and employs a similar schedule.
There are no surprises in the process of producing the bill.
Staff and Senators know what to expect. After new staff and
Senators complete the process once or twice, they understand
how to participate fully in future bills. While the issues
change, the process does not.
Hearings are constructed as information-gathering exercises
premised upon substantive inquiry. The panels in the SASC are
used to create a public record in preparation for the drafting
of the NDAA. The hearings illuminate the significant policy
problems that must be addressed in the annual authorization
bill. For example, in the FY2011 bill, the SASC held committee
hearings on metrics for the Joint Strike Fighter, which
resulted in bill language that created a matrix to evaluate the
program's progress. Transcripts from the hearings assist in the
production of the bill. Testimony can bring issues to light,
such as low-performing schools for children in military
families.
The hearings also serve a policy purpose for the bill; they
set the stage for the drafting, identify key issues that must
be included, and give signals to the public about what the
committee plans to address in the upcoming NDAA. The entire
committee is structured around the completion of one major
task, the NDAA. The routine nature of the process and the focus
of the committee on this task play a significant role in its
completion.
Staff Interactions
Distinct from other aspects of bipartisanship is the role
of staff. The unique, collegial relationships that exist
between Senate staff who work on defense authorization issues
contribute considerably to the routine passage of the bill.
Why does this bipartisan collegiality exist? Part of the
reason is that regardless of party affiliation, staff who work
on the NDAA believe that their work is critically important to
maintaining a strong national defense. They also agree that
those who serve in the military deserve strong legislative
support from Congress.
Besides having common goals, Senate Armed Services
Committee staff also share office space. Party affiliation
determines seating within the suite, but everyone has the same
door key to a shared office space. This type of office
structure facilitates a bipartisan working environment. This
unusual arrangement developed over time, but in large part was
due to Chairman Richard Russell. Years earlier, he decided that
instead of moving Armed Services Committee staff to the newly
constructed Senate Office Building across the street, the
committee would remain in its original location, even if the
space was smaller.\24\ Since there was no room for separate
partisan staffs in the office suite, the tradition of sitting
together in a bipartisan fashion took root.
---------------------------------------------------------------------------
\24\ The building in which SASC works was named for Senator Russell
in 1972.
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Partially due to the friendly relations between staff of
different parties, the longevity of committee staff is
considerable. Over time, working relationships based on mutual
trust can develop, since turnover is minimal.\25\ When a
majority staffer tells his minority counterpart that he will
include a particular provision in the chairman's mark of the
bill, there is little doubt that the majority staffer will keep
his word. If party control in the Senate flips the following
year, reciprocal courtesy is standard operating procedure.
---------------------------------------------------------------------------
\25\ See Towell, p. 87, on this point. For example, in 2008, almost
20 percent of the professional staff on SASC had worked on the
committee for over 10 years.
---------------------------------------------------------------------------
In addition to the seating arrangements, committee staffers
conduct routine business in a bipartisan fashion. For example,
staff travel together on trips abroad. This increases comity
and lessens the likelihood of open disagreements. Furthermore,
when the Pentagon provides briefings to committee staff, both
the majority and minority often attend the same meeting. This
enables both sides of the aisle to hear the same information
and responses. The sheer amount of time spent with each other
also enables a strong working relationship. A ``team effort''
approach is omnipresent.
Collegiality is similarly exercised by MLAs. In the past, a
bipartisan group of MLAs met regularly after work to discuss
issues of importance and plan trips together. MLAs also trusted
committee staff from both parties to work with them in crafting
the NDAA. The trusting relationships between MLAs and committee
staff help to facilitate substantive hearings in the early part
of the process, and even more importantly, a smooth and
efficient committee markup later in the year. Often, committee
staff cannot accept the amendments submitted by MLAs for markup
as prepared, but commit to working with them to craft
compromise language that can be included in the bill as it
moves out of committee. That commitment to working with
personal office staff routinely on a bipartisan basis helps
prevent the bill from stalling and keeps it moving toward
Senate floor consideration.
Armed Services staff and MLAs also operate within a focused
and defined defense community. That interconnected community,
which includes think tank scholars, select journalists, and
industry representatives, is close-knit and typically
collegial. The norms of bipartisanship extend beyond Capitol
Hill, and provide a general professional arc of expectation
concerning reasonable collaboration and reciprocity.
Closed Markup
A key difference in the operations of the Senate Armed
Services Committee's markup process compared to that of the
House is the practice of conducting a closed markup of the
NDAA.\26\ Only Senators and staff holding an appropriate
security clearance attend the full committee markup. Decisions
made in markup are not classified, but the discussions and the
debate concerning such decisions can involve classified
information.
---------------------------------------------------------------------------
\26\ According to Rule XXVI of the Standing Rules of the Senate,
committee hearings shall be open to the public. There are several
exceptions to this rule, including ``secrets in the interests of
national defense'' and ``information to the trade secrets of financial
or commercial information.'' See http://www.rules.senate.gov/public/
index.cfm?p=RulesOfSenateHome.
---------------------------------------------------------------------------
During the closed markup process, the public, lobbyists,
and journalists are prohibited from entering the committee
room. Usually, the chair and the ranking member stress to
Senators and staff at the beginning of the subcommittee (if
closed) and full committee markups the importance of compliance
with the embargo of the contents of the chairman's mark and
confidentiality during the committee's deliberations.
The closed nature of the markup enables the committee to
move from unclassified to classified deliberations quickly. If
classified information or occasionally industry proprietary
information is pertinent to a particular provision of the bill
that is being considered during markup, the committee can
discuss such details, since all participating staff possesses
the necessary security clearances. The decisions made during
the markup, however, are not classified, and are available to
the public after completion, with the exception of the
classified annex.
The benefits of a closed process include an efficient and
candid policymaking process. Without reporters or lobbyists in
the room, Senators are free to debate difficult decisions and
to compromise. If a provision is discussed in markup, it
usually means that the committee staffers were unable to
resolve differences on that provision prior to the mark, or it
could mean that the chair's preference on a provision differs
from those of others on the committee. Consequently, it is then
up to the Senators, with the assistance of the committee staff
and MLAs, to come up with a compromise solution or a way
forward. When dealing with weapons systems and military
procurement, these decisions often have parochial consequences
for Senators on the committee. The closed markup allows
Senators with those concerns to craft a deal with others on the
committee that might be difficult if lobbyists or reporters
were present. Compromise often requires some degree of
anonymity, and the closed markup in the SASC is testimony to
that reality.\27\
---------------------------------------------------------------------------
\27\ On the point about anonymity and compromise in Congress, see
R. Douglas Arnold, The Logic of Congressional Action (New Haven, CT:
Yale University Press, 1992).
---------------------------------------------------------------------------
In the past few years, a handful of Senators on the SASC
have tried to change the closed markup process for the NDAA.
They argue that an open process would be beneficial, pointing
to the fact that the House Armed Services Committee does not
close its markup of the NDAA. Efforts to increase funding for
particular programs would be disclosed publicly. Advocates for
an open markup argue that parochialism might lessen during an
open session, and accountability for defense authorization
spending would increase.
Although full committee markup continues in closed session,
each year the proponents of an open process gain more traction.
In recent years, various advocacy groups have waged a public
relations campaign to open the markup.\28\ In the FY2014 full
committee markup, 2 hours of debate on provisions related to
sexual assault in the military occurred in open session. For
the FY2015 bill, four of the six subcommittee markups
transpired in open session. Although the markups were held in
open session, the contents of the subcommittee markup books
were still embargoed and were not released publicly until the
bill and its accompanying report were sent to the full Senate.
---------------------------------------------------------------------------
\28\ See ``Open NDAA'' at http://openndaa.org/.
---------------------------------------------------------------------------
The ramifications of moving to an open full committee
markup are a point of contention. While the goal of an open
markup is to increase transparency and accountability, others
contend that it could have the opposite effect, leading to a
reduction of vigorous debate and fewer compromises. An open
markup could have other unintended consequences, such as
pushing crucial decisions back to the proverbial smoke-filled
room or facilitating greater influence on the part of interest
groups and industry lobbyists.
Concluding Thoughts
When considering the operations of Congress as a bicameral
institution, the larger question is whether the practices and
norms adopted by the Senate Armed Services Committee in its
production of writing an annual defense authorization bill can
be applied to other committees or policy areas.
No particular committee or entity in Congress has a
monopoly on bipartisanship. Within the Senate Armed Services
Committee, bipartisanship is the norm among elected Senators,
professional staff, and personal office legislative assistants.
The bipartisanship is part of the committee's history and has
persevered due to decades of a shared culture and philosophy.
Bipartisanship is path-dependent in the SASC; past practices
largely determine future behavior. However, other committees
that may want to foster a similar culture could adopt several
of the practices the SASC employs. Bipartisanship also starts
at the top; the chair and ranking members can set the tone of a
committee that could have lasting consequences on the
operations and procedures of the panel. In the example of the
FY2011 NDAA, in which final passage relied upon unanimous
consent, bipartisanship and stripping out all controversial
provisions fostered the shared trust between the majority and
minority that made such an agreement possible.
The SASC adopts a routine approach to the production of the
NDAA each year. The predictability imposes certain constraints
on those who work on the bill, but because the mechanics of
production are kept relatively constant, the process is
difficult to derail. The copious hearings conducted in the
early part of the year help to identify the most critical
issues facing the military. In FY2011, when a bill with fewer
provisions had to move forward due to time constraints at the
end of the Congress, committee staff were in a good position to
prioritize the most critical issues that had generated a
consensus agreement. Even though floor consideration in FY2011
was severely truncated at the end, the NDAA was able to survive
because the process behind it had been comprehensive. Other
committees may produce more than one major piece of legislation
in a given year, but the consensual ``building-block'' approach
utilized by the SASC could be adopted, in modified form, to
meet the needs of other authorizing committees.
It is unlikely that the closed full committee markup in the
SASC could be replicated in other committees. Rule XXVI of the
Standing Rules of the Senate requires open committee meetings,
except when a committee is scheduled to discuss matters of
national security, law enforcement, finance, or governmental
security.
An analogy may be instructive. The Department of Defense,
due to its size and critical mission, can be compared to a
snowball rolling down a hill; it may encounter obstacles in its
path, but the sheer force of its momentum is formidable. The
NDAA keeps the snowball moving, and the processes and
procedures in place at the SASC prevent it from breaking apart.
The NDAA builds upon a stable foundation due to the nature of
defense policy and the institutional magnitude of the Pentagon,
but the specific actions taken by the SASC are consequential.
It is important to note that when the NDAA has encountered
recent difficulties in the Senate, those challenges occurred
during floor consideration. A failure to reach a consensus on
the floor concerning which amendments will receive time for
debate, votes, or inclusion in a manager's package has
complicated Senate passage of the bill.
The historical practices of the Senate Armed Services
Committee in its annual production of the National Defense
Authorization Act are worthy of attention. These norms and
processes have not received considerable attention in the past
from students of Congress or of defense policy. The unique
success of this story warrants further consideration and study
as representative and policymaking functions change over time.
It also lends credence to the proposition that Congress is an
evolving institution that can forge functional and creative
solutions, rather than a fundamentally ``broken branch'' of
government.
The SBA and Small Business Policymaking in Congress
Robert Jay Dilger
Senior Specialist in American National Government
and
Sean Lowry
Analyst in Public Finance
----------
Prior to the 1960s, small business policymaking was
relatively noncontroversial; the Small Business
Administration's activities were relatively limited;
and congressional deliberations typically followed
regular order, featuring committee hearings, committee
markups, open floor debate, and a conference committee
to resolve any differences. Over time, the SBA's
mission has expanded beyond its original,
noncontroversial mandate of promoting competition in
private markets. This expansion enhanced the agency's
role in Federal economic policy, but also opened the
door to additional conflict. Today, small business
policymaking is increasingly characterized by partisan
differences, with many congressional Democrats viewing
the SBA as a vehicle to promote economic growth and job
creation, and many congressional Republicans objecting
to spending programs that increase the Federal deficit
or add to the Federal debt. Also, committee leaders and
others often seek alternative legislative means to
achieve their goals, for example attaching small
business provisions to bills considered ``must pass''
legislation, such as national defense authorization and
appropriations bills. Thus, even in the most divided
and partisan circumstances, Congress finds a way to
pass small business legislation.
The SBA and Small Business Policymaking in Congress
From the depths of the Great Depression to today, assisting
small business has emerged as a major issue for Congress, and a
major point of contention. The growth of the Small Business
Administration (SBA) from a nonpermanent agency with a
relatively narrow, noncontroversial mandate to a permanent,
Cabinet-level agency with a broad array of programs has created
more opportunities for ideological and policy divisions around
key issues of the day, such as the best means to promote
economic recovery and growth while maintaining fiscal
responsibility. The severity of these divisions has had a
significant effect on the legislative process and small
business policymaking in Congress.
As will be discussed, in the past, especially under united
government, small business policymaking often followed regular
order, featuring committee hearings, followed by committee
markups in both the House and Senate Small Business Committees,
open floor debate in both Chambers, and a conference committee
to resolve any differences on the legislation under
consideration. Today, especially under divided government, it
is less likely that small business policymaking will follow
regular order. Instead, committee hearings and markups take
place, but knowing that the other body is not likely to address
the legislation there is less incentive to explore all sides of
the issue--leading to an increased number of hearings that
focus on the presentation of a particular viewpoint, rather
than discussions of how to find a compromise solution. In
addition, especially under divided government, committee
leaders and others often seek alternative legislative means to
achieve their goals, such as attaching small business
legislation to other bills considered more likely to pass
(e.g., national defense authorizations and appropriations
bills). Thus, even in the most divided and partisan
circumstances, Congress can still pass small business
legislation. However, in the modern era, enacting major small
business legislation is extremely difficult when Congress is
divided, and partisan differences run deep.
The Great Depression and the Origins of Modern Small Business Policy
One of the earliest indications of congressional interest
in assisting small businesses was the enactment of legislation
(P.L. 72-2) during the Great Depression (on January 22, 1932),
creating the Reconstruction Finance Corporation (RFC). The RFC
was an independent Federal agency tasked with stabilizing
financial markets and assisting businesses of all sizes to
access capital through the provision of loans and the purchase
of preferred stock, capital notes, and debentures. Although the
RFC provided financial assistance to businesses of all sizes,
President Herbert Hoover indicated in his signing statement
that the RFC was:
not created for the aid of big industries or big banks.
Such institutions are amply able to take care of themselves. It
is created for the support of the smaller banks and financial
institutions, and through rendering their resources liquid to
give renewed support to business, industry, and agriculture. It
should give opportunity to mobilize the gigantic strength of
our country for recovery.\1\
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\1\ Herbert Hoover, ``Statement About Signing the Reconstruction
Finance Corporation Act,'' January 22, 1932. Online by Gerhard Peters
and John T. Woolley, The American Presidency Project, at http://
www.presidency.ucsb.edu/ws/?pid=23210.
President Hoover's statement reflected a prevailing
national consensus that continues today: that Federal
assistance to small businesses is justified because such
assistance promotes competition in the private marketplace and,
in turn, helps to prevent the adverse economic consequences
that result from the formation of economic oligarchies and
monopolies.
Congress initially provided the RFC $500 million (over $80
billion in 2013 dollars), with 10 percent of that amount set
aside for the Secretary of Agriculture to provide financial and
disaster assistance to farmers. The law required the RFC to
give preference when awarding loans and advances to farmers who
had experienced a crop failure during the Dust Bowl of 1931.
Thus, from its beginning, the RFC was directed to provide both
business and disaster assistance.
Over time, Congress authorized an expansion of the RFC's
activities. For example, immediately before and during World
War II, the RFC, among other activities, financed plant
conversions and new construction to enhance the nation's
production of military and essential goods.\2\ After the war,
the RFC's activities were limited primarily to making loans to
businesses and providing disaster assistance.
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\2\ James Butkiewicz, ``The Reconstruction Finance Corporation,''
at http://eh.net/encyclopedia/reconstruction-finance-corporation/.
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Another early indication of congressional interest in
assisting small business was the creation of the Senate Special
Committee to Study and Survey Problems of Small Business
Enterprises on October 8, 1940, and the House Select Committee
on Small Business on December 4, 1941.\3\ These two committees,
which were later provided permanent, standing committee status
under new names, actively promoted small business interests in
Congress by holding hearings and publishing reports designed to
inform Congress on the problems faced by small businesses and
their importance to the American economy.\4\ For example, the
House Select Committee on Small Business was charged with the
responsibility to determine whether small businesses ``are
being adequately developed and utilized,'' what factors have
hindered and are hindering small business development and
utilization, whether adequate consideration is being given to
small business needs, and to make recommendations to address
``the post-war problems of small business.'' \5\ Both
committees focused attention on the role of small businesses in
preventing the formation of economic oligarchies and monopolies
and ``predatory practices which threaten . . . the future of
the free-enterprise system.'' \6\
---------------------------------------------------------------------------
\3\ Senator James Murray, ``Survey of Problems of Small Business
Enterprises, Senate Resolution 298, Calendar No. 2171,'' remarks in the
Senate, Congressional Record, vol. 86, part 12 (October 8, 1940), pp.
13365-13372; and Representative Adolph Sabath, ``Select Committee to
Study Relationship of Defense Program to Small Business, House
Resolution 294,'' House debate, Congressional Record, vol. 87, part 9
(December 4, 1941), pp. 9418-9428.
\4\ The Senate Special Committee was replaced by the Select
Committee on Small Business on February 20, 1950, and that committee
was renamed the Senate Committee on Small Business and provided
permanent, standing committee status on March 25, 1981. On June 29,
2001, the committee's name was changed to the Senate Committee on Small
Business and Entrepreneurship. See Senator Kenneth Wherry, ``Creation
of Standing Committee on Small Business, consideration of S. Res. 58,''
remarks in the Senate, Congressional Record, daily edition, vol. 96,
part 2 (February 20, 1950), pp. 1920-1944; Senator Lowell Weicker,
``Senate Resolution 101--Changing Status of Committee on Small Business
to That of a Standing Committee,'' remarks in the Senate, Congressional
Record, vol. 127, part 4 (March 25, 1981), pp. 5130-5132; and Senator
John Kerry, ``Changing the Name of the Committee on Small Business to
the Committee on Small Business and Entrepreneurship, S. Res. 123,''
remarks in the Senate, Congressional Record, vol. 147, part 9 (June 29,
2001), p. 12590. The House Select Committee on Small Business was made
a permanent Select Committee on January 22, 1971, and provided
permanent, standing committee status on October 8, 1974--effective
January 1975. See Representative William Colmer, ``Rules of the House,
H. Res. 5,'' House debate, Congressional Record, vol. 117, part 1
(January 22, 1971), pp. 132-144; and U.S. Congress, House Select
Committee on Committees, Committee Reform Amendments of 1974:
Explanation of H. Res. 988 as Adopted by the House of Representatives,
October 8, 1974, committee print, prepared by staff, 93d Cong., 2d
sess., January 1, 1974, H. Prt. 93-962-8 (Washington: GPO, 1974), pp.
3, 5, 50-51.
\5\ Representative Adolph Sabath, ``Select Committee to Study
Relationship of Defense Program to Small Business, House Resolution
294,'' House debate, Congressional Record, vol. 87, part 9 (December 4,
1941), p. 9418.
\6\ U.S. Congress, House Select Committee on Small Business, Annual
Report, pursuant to H. Res. 18, 80th Cong., 2d sess., H. Rept. 80-2466
(Washington: GPO, 1948), p. 2.
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Authorization of the Small Business Administration
In 1953, the Republican 83d Congress (1953-1955) decided to
phase out the RFC, largely due to allegations of political
favoritism in the granting of RFC loans and contracts.\7\
Enacted on July 30, 1953, Title 1 of P.L. 83-163, the
Reconstruction Finance Corporation Liquidation Act, provided a
timeline to terminate the RFC's activities and to transfer its
assets to other governmental agencies.
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\7\ U.S. Congress, Senate Committee on Expenditures, Subcommittee
on Investigations, Influence in Government Procurement, 82d Cong., 1st
sess., September 13-15, 17, 19-21, 24-28, October 3-5, 1951
(Washington: GPO, 1951); and U.S. Congress, Senate Banking and
Currency, RFC Act Amendments of 1951, hearing on bills to amend the
Reconstruction Finance Corporation Act, 82d Cong., 1st sess., April 27,
30, May 1, 2, 22-23 (Washington: GPO, 1951).
---------------------------------------------------------------------------
Concerned that small businesses might be harmed by the
RFC's termination, especially given that the nation was
experiencing a recession at the time (July 1953-May 1954),
Title II of P.L. 83-163, the Small Business Act of 1953,
authorized the creation of the Small Business Administration
(SBA), initially on a temporary, 2-year basis.\8\
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\8\ P.L. 85-536, to amend the Small Business Act of 1953, enacted
on July 18, 1958, made Title II of P.L. 83-163 a separate act to be
known as the Small Business Act, and provided the SBA permanent
statutory status.
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Limited Scope, Limited Controversy
The SBA's primary function, which is to enhance competition
in the private marketplace by promoting the interests of small
business, was, and remains, relatively noncontroversial.
However, due to concerns about the political influence of
larger businesses, small business advocates purposely limited
the SBA's scope of operations, both to attract support for the
agency's adoption and to minimize future partisan differences
that could threaten the agency's survival. For example,
statutory limits were placed on the amount of financial
assistance the SBA could provide, and SBA loans could only be
issued to borrowers who were unable to find credit on
reasonable terms elsewhere.
Like the RFC, the SBA was made an independent agency
because, as the House Select Committee on Small Business put
it, ``it is the feeling of this committee that such
independence is absolutely essential and that the agency should
be nonpartisan in nature, if small business is to receive
proper recognition by the Government.'' \9\
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\9\ U.S. Congress, House Select Committee on Small Business, Final
Report, pursuant to H. Res. 22, 83d Cong., 2d sess., H. Rept. no. 2683
(Washington: GPO, 1954), p. 3.
---------------------------------------------------------------------------
At the time of the Small Business Act's enactment, most
Members of Congress viewed the SBA's lending authority as the
main way the agency would contribute to its mission. For
example, in 1955, the Senate Select Committee on Small Business
noted that:
From the outset, the congressional sponsors of the
legislation establishing the Small Business Administration were
convinced that the agency's most important action program was
in the field of financial assistance. Committee and floor
discussion in both Houses indicated that the Members of the
Senate and the House of Representatives felt that this
organization was designed to take up at least part of the gap
which would be left when the Reconstruction Finance
Corporation's authority came to an end. It was almost
universally agreed that the legitimate credit needs of small
businesses could not be met by private financial sources, and
for that reason Congress authorized the SBA to make direct
loans and to join banks in offering loans to those small
concerns which were unable to find financing elsewhere.\10\
---------------------------------------------------------------------------
\10\ U.S. Congress, Senate Select Committee on Small Business,
Annual Report, 84th Cong., 1st sess., S. Rept. 84-129 (Washington: GPO,
1955), p. 9.
Although Congress authorized the SBA to provide access to
capital to small businesses, it also indicated that the agency
was not meant to supplant traditional lenders. Secretary of the
Treasury George Humphrey testified before the Senate Committee
on Banking and Currency that the Eisenhower administration
supported the SBA's authorization. He further testified that
the new agency should focus on the provision of guaranteed
loans, as opposed to direct loans, to further ensure that it
would supplement, and not compete with, private lenders.\11\
This belief led to the statutory requirement that the SBA can
only provide business loans to small businesses that cannot
obtain credit elsewhere on reasonable terms.\12\
---------------------------------------------------------------------------
\11\ Ibid., pp. 547-548.
\12\ As originally introduced by William Hill, chair of the House
Select Committee To Conduct a Study and Investigate the Problems of
Small Business, H.R. 5141, to create the Small Business Administration,
would have provided the SBA permanent statutory authority and created a
$500 million revolving fund to be used by the SBA for ``prime contract
operations and loans''; it did not specify any direct or guaranteed
loan limit ``with respect to any borrower.'' The bill, which, as
amended, ultimately became the Small Business Act, restricted the SBA's
authority to provide financial assistance to businesses that are deemed
by the SBA to be small and unable to access credit elsewhere on
reasonable terms. See U.S. Congress, House Committee on Banking and
Currency, Creation of Small Business Administration, hearing on H.R.
4090 and H.R. 5141, 83d Cong., 1st sess., May 14, 1953 (Washington:
GPO, 1953), p. 8. For a discussion and analysis of the SBA's size
standards, see CRS Report R40860, Small Business Size Standards: A
Historical Analysis of Contemporary Issues, by Robert Jay Dilger.
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In addition to financial assistance, the SBA inherited two
preexisting Federal functions: disaster assistance from the
RFC; and Federal contracting assistance from the RFC and the
Small Defense Plants Administration. The SBA was also
authorized to provide small businesses with management and
technical training assistance. Together, these authorizations
(the provision of financial assistance, contracting assistance,
management and technical training assistance, and disaster
assistance) were viewed as both necessary and sufficient to
enable the SBA to meet its primary goal of enhancing the
viability of small businesses and competitive markets.
The SBA's Expanding Scope of Operations Leads to Increased Partisan
Conflict
During the early 1950s, the SBA's relatively limited scope
resulted in small business policymaking in Congress being
relatively low key and nonpartisan. The partisan composition of
Congress at that time had relatively little impact on small
business policymaking as most debates concerning the SBA were
largely limited to determining the amount of money necessary to
fully capitalize the SBA's business and disaster lending
programs to meet existing demand.
However, soon after its inception, policy debates over
small business lending and the SBA's future began to shift from
an almost exclusive focus on the relatively noncontroversial
promotion of competitive markets to more partisan debates
concerning the best way to create jobs and promote economic
growth. This shift in focus was apparently triggered by two
developments: a Federal Reserve Board report and Congress'
reaction to a recession.\13\ The Federal Reserve Board report
noted that the SBA did not [but should] provide equity
financing--money provided in exchange for a share of ownership
in the business.\14\
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\13\ The recession lasted from August 1957 to April 1958.
\14\ U.S. Congress, House Committee on Banking and Currency, Small
Business Investment Act of 1958, report to accompany S. 3651, 85th
Cong., 2d sess., June 30, 1958, H. Rept. 85-2060 (Washington: GPO,
1958), pp. 4-5.
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In response to the Federal Reserve Board's report and
concerned about the pace of the economic recovery from the
recession, the Democratic 85th Congress (1957-1959), with broad
support from both sides of the aisle, first provided the SBA
permanent statutory authority (P.L. 85-536) and then approved
P.L. 85-699, the Small Business Investment Act of 1958
(SBIA).\15\ The act significantly expanded the SBA's scope of
operations. Two key features of the SBA's expanded authority
merit attention.
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\15\ P.L. 85-536, to amend the Small Business Act of 1953, was
enacted on July 18, 1958. It made Title II of P.L. 83-163 a separate
act to be known as the Small Business Act. The House passed its version
of the act (H.R. 7963) on June 25, 1958, by a vote of 393 to 2. The
Senate passed the House bill, with amendments, on July 1, 1958, by
voice vote. The conference agreement was passed by the House on July
10, 1958, by voice vote; and by the Senate on July 11, 1958, by voice
vote. P.L. 85-699 was enacted on August 21, 1958. The Senate passed its
version of the act (S. 3651) on June 9, 1958, by voice vote. The House
passed the Senate bill, with amendments, on July 23, 1958, by a vote of
131 to 5. The conference agreement was passed by both the House and the
Senate on August 7, 1958, by voice vote.
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First, the SBIA authorized the SBA to create a venture
capital investment program, later called the Small Business
Investment Company (SBIC) program. The SBIC program was to
``improve and stimulate the national economy in general and the
small business segment thereof in particular'' by stimulating
and supplementing ``the flow of private equity capital and long
term loan funds which small business concerns need for the
sound financing of their business operations and for their
growth, expansion, and modernization, and which are not
available in adequate supply.'' \16\
---------------------------------------------------------------------------
\16\ 15 U.S.C. 661. For further information and analysis
concerning the SBA's SBIC program, see CRS Report R41456, SBA Small
Business Investment Company Program, by Robert Jay Dilger.
---------------------------------------------------------------------------
Second, the SBIA authorized a new small business lending
program, now called the 504/Certified Development Company loan
guaranty (504/CDC) program. The 504/CDC program provides long-
term fixed rate financing for major fixed assets, such as land,
buildings, equipment, and machinery.\17\ In return for the
financing, borrowers have to create a specified minimum number
of jobs based on the size of the loan.
---------------------------------------------------------------------------
\17\ For further information and analysis concerning the SBA's 504/
CDC program, see CRS Report R41184, Small Business Administration 504/
CDC Loan Guaranty Program, by Robert Jay Dilger. Five for-profit CDCs
that participated in predecessor CDC programs have been grandfathered
into the current 504/CDC program.
---------------------------------------------------------------------------
Overall, the expansion of the SBA's scope in 1958 to
include venture capital and long-term lending was viewed as a
means to assist in the promotion of free markets, to address
market failures, and to enhance economic growth generally, and
job growth specifically.
The idea of expanding the SBA's scope to promote short-term
job and economic growth, especially as a countercyclical policy
tool during recessions, would later lead to heightened levels
of partisan conflict over the coming decades. Most Democrats
and advocates of demand side economics argue for the expansion
of the SBA's programs as a vehicle to combat recessions.\18\ In
contrast, most Republicans and advocates of supply side
economics argue against these efforts, preferring lower taxes,
reduced regulatory burden on business, and fiscal restraint as
the best means to combat recessions.\19\ Also, as will be
discussed, the relatively high subsidy costs associated with
the SBA's direct lending program in the 1980s and 1990s and
unprecedented losses in the SBIC's participating securities
program during the early 2000s later led to increased partisan
conflict over the extent of risk present in the SBA's loan and
venture capital programs.
---------------------------------------------------------------------------
\18\ Demand-side economics is a school of macroeconomics that
focuses on policies designed to stimulate aggregate demand, such as
increased funding for infrastructure projects and spending programs
targeted at lower income individuals who tend to spend the greatest
portion of their income on consumer goods.
\19\ Supply-side economics is a school of macroeconomics that
focuses on policies designed to reduce barriers for people to produce
(supply) goods and services as well as invest in capital, such as lower
marginal Federal income tax rates and less business regulation.
---------------------------------------------------------------------------
The SBA as a Tool to Address Discriminative Lending Practices
In 1964, at the height of the civil rights movement in the
United States, the SBA temporarily established the ``6 on 6''
pilot lending program. It provided loans of up to $6,000 for up
to 6 years ``aimed specifically at disadvantaged potential
entrepreneurs.'' \20\ This initiative was one of the earliest
attempts by the SBA to address what many view as special
impediments faced by minority entrepreneurs in accessing
capital. The Democratic 88th Congress (1963-1965) also approved
legislation to combat poverty and racial discrimination. One of
these acts (P.L. 88-452, the Economic Opportunity Act of 1964--
Title IV, Employment and Investment Incentives) authorized the
director of the Office of Economic Opportunity, through the
SBA, to provide what were subsequently called Economic
Opportunity Loans (EOL).
---------------------------------------------------------------------------
\20\ U.S. Congress, House Select Committee on Small Business,
Subcommittee on Minority Small Business Enterprise, Government Minority
Small Business Programs, hearing pursuant to H. Res. 5 and 19, 92d
Cong., 1st sess., July 27, 1971 (Washington: GPO, 1972), p. 6.
---------------------------------------------------------------------------
The EOL program became operational in January 1965, and
continued through 1992 (the final EOL loan was disbursed in
1996).\21\ Initially, the EOL program provided direct loans (of
up to $25,000, with loan terms of up to 15 years) to assist
small businesses and promote employment of the long-term
unemployed. Starting in 1968, EOL loans increasingly were
issued as guaranteed loans.\22\ Although the EOL program
evolved over time, it remained focused on providing loans to
low-income, minority-owned, very small businesses. The EOL
program also provided management and technical training
assistance to disadvantaged entrepreneurs.\23\
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\21\ P.L. 93-386, the Small Business Amendments of 1974, formally
transferred EOL program authority from the Office of Economic
Opportunity to the SBA.
\22\ The program's loan limits were increased by law from $25,000
to $50,000 in 1972 and to $100,000 in 1976.
\23\ U.S. Congress, House Committee on Education and Labor,
Economic Opportunity Act Amendments of 1967, hearing on H.R. 8311, 90th
Cong., 1st sess., June 23, 1967 (Washington: GPO, 1967), pp. 1356-1362;
U.S. Congress, House Committee on Appropriations, Subcommittee on
Commerce, Justice, State, and Judiciary, Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
for 1993, 102d Cong., 2d sess., February 19, 1992 (Washington: GPO,
1992), pp. 503-504; and U.S. General Accounting [now Accountability]
Office, Most Borrowers of Economic Opportunity Loans Have Not Succeeded
in Business, CED-81-3, December 8, 1980, pp. 1-8, at http://
www.gao.gov/assets/140/131190.pdf.
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The EOL program and its successor, the Microloan program,
broadened the SBA's scope of operations to include special
efforts to address discriminative lending practices in the
private sector.\24\ Over the years, a partisan debate has
developed over whether special programs to aid specific
demographic groups are necessary, duplicative of other
programs, effective, or divert resources from the SBA's core
mission.\25\
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\24\ For further information and analysis concerning the SBA's
Microloan program, see CRS Report R41057, Small Business Administration
Microloan Program, by Robert Jay Dilger.
\25\ For example, President George W. Bush proposed the elimination
of all funding for the Microloan program in his FY2005, FY2006, and
FY2007 budget requests to Congress, arguing that the 7(a) program was
capable of serving the same clientele at a much lower cost. President
Bush also proposed to terminate the Microloan program's marketing,
management, and technical assistance grant program in his FY2008 and
FY2009 budget requests to Congress. More recently, the House Committee
on Small Business has recommended to the House Committee on the Budget
that the SBA's various management and technical assistance training
programs should be ``folded into the mission of the SBDC program or
their responsibilities should be taken over by other agencies'' because
they ``overlap each other and duplicate the educational services
provided by other agencies.'' See U.S. Office of Management and Budget,
Budget of the United States Government: Fiscal Year 2005, p. 334, at
http://www.gpoaccess.gov/usbudget/fy05/pdf/budget/sba.pdf; U.S. Office
of Management and Budget, Budget of the United States Government:
Fiscal Year 2006, p. 313, at http://www.gpoaccess.gov/usbudget/fy06/
pdf/budget/sba.pdf; U.S. Office of Management and Budget, Budget of the
United States Government: Fiscal Year 2007, p. 283, at http://
www.gpoaccess.gov/usbudget/fy07/pdf/budget/sba.pdf; U.S. Office of
Management and Budget, Budget of the United States Government: Fiscal
Year 2008, pp. 139-140, at http://www.gpoaccess.gov/usbudget/fy08/pdf/
budget/sba.pdf; U.S. Office of Management and Budget, Budget of the
United States Government: Fiscal Year 2009, p. 130, at http://
www.gpoaccess.gov/usbudget/fy09/pdf/budget/sba.pdf; and U.S. Congress,
House Committee on Small Business, ``Views and Estimates of the
Committee on Small Business on Matters to be set forth in the
Concurrent Resolution on the Budget for FY2014,'' communication to the
chairman, House Committee on the Budget, 113th Cong., 1st sess.,
February 27, 2013, at http://smallbusiness.house. gov/uploadedfiles/
revised_2014_views_and_estimates_document.pdf.
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The Divide Over Direct Loans and Increasing Costs to the Taxpayer
The SBA has authority to make direct loans, both for
disaster relief and for business purposes. During its first 40
years, the SBA slowly redirected most of its business lending
away from direct loans to guaranteed loans, primarily because
the subsidy rate for direct loans was higher than the subsidy
rate for guaranteed loans.\26\ For example, in FY1980, the SBA
had authority for $301 million in direct lending and $3.6
billion in guaranteed loans.\27\ During the 1980s and 1990s,
direct business loan subsidy costs became a highly partisan
issue. Many congressional Republicans viewed the elimination of
SBA direct loans as a means to achieve budgetary savings that
could be used to reduce the Federal deficit. Rather than
increased spending, they supported tax reduction, business
regulatory relief, and fiscal restraint as the best means to
assist small businesses.\28\
---------------------------------------------------------------------------
\26\ The subsidy rate is primarily the difference between revenue
generated from fees and net collateral liquidation and the costs of
defaults.
\27\ U.S. Congress, House Committee on Small Business, Summary of
Activities, 96th Cong., 2d sess., December 29, 1980, H. Rept. 96-1542
(Washington: GPO, 1980), p. 9.
\28\ U.S. Congress, Senate Committee on Small Business, To Consider
and Report to the Senate Budget Committee Recommendations for Small
Business Administration Programs, 97th Cong., 1st sess., March 13, 1981
(Washington: GPO, 1981), pp. 3-36.
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In 1985, the Reagan administration proposed a 25-percent
reduction in the SBA's direct lending authority, as a means to
reduce loan subsidy costs. With the Republican Senate's
support, the 99th Congress (1985-1987) passed legislation
restricting the eligibility for SBA direct business loans.
However, in a compromise with the Democratic House, SBA direct
loan eligibility was retained for a few, specified types of
small business owners.\29\ The Microloan program also retained
eligibility for direct loans to SBA-certified lending
intermediaries, which issue microloans to qualified
individuals.\30\
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\29\ Small businesses owned by low-income individuals, Vietnam-era
or disabled veterans, the handicapped or certain organizations
employing them, or certified under the minority small business capital
ownership development program or located in high-unemployment areas
retained eligibility for direct loans.
\30\ U.S. Congress, House Committee on Small Business, Summary of
Activities, 103d Cong., 2d sess., January 2, 1995, H. Rept. 103-885
(Washington: GPO, 1995), p. 8; and U.S. Congress, Senate Committee on
Small Business, Hearing on the Proposed Fiscal Year 1995 Budget for the
Small Business Administration, 103d Cong., 2d sess., February 22, 1994,
S. Hrg. 103-583 (Washington: GPO, 1994), p. 20.
---------------------------------------------------------------------------
The Reagan administration also sought large reductions in
the SBA's overall budget. On April 4, 1985, the Reagan White
House announced that it had reached an agreement with Senate
Republican Party leaders to freeze, reduce, or eliminate 47
domestic programs. The SBA was included on the list for
elimination.\31\ During subsequent budget negotiations with the
Democratic House, the SBA was retained, but its funding was
reduced from $1.25 billion in FY1985 to $714.4 million in
FY1986.\32\
---------------------------------------------------------------------------
\31\ Dorothy Collin, ``Reagan, GOP Cut Budget Deal,'' Chicago
Tribune, April 5, 1985.
\32\ The SBA's budget was further reduced to $613.7 million in
FY1987, $428.3 million in FY1988, and $420.2 million in FY1989.
---------------------------------------------------------------------------
Nine years later, on October 1, 1994, the Democratic 103d
Congress (1993-1995), at the urging of the Clinton
administration, further limited SBA direct business loan
eligibility to Microloan program lending intermediaries and to
small businesses owned by the disabled. Facing large budget
deficits, Congress approved the proposal, primarily because the
subsidy rate for the SBA's direct loans was ``10 to 15 times
higher than [the subsidy rate for the SBA's] guaranty
programs.'' \33\ SBA Administrator Erskine Bowles testified
before the House Committee on Small Business that eliminating
most of the SBA's direct business lending was necessary to
``generate the most bang for the taxpayer's bucks.'' \34\
Funding to support direct business loans to the handicapped
through the Handicapped Assistance (renamed the Disabled
Assistance) Loan program ended in 1996.\35\ Other than disaster
relief, the SBA currently offers direct business loans only to
Microloan program lending intermediaries.
---------------------------------------------------------------------------
\33\ U.S. Congress, Senate Committee on Small Business, Hearing on
the Proposed Fiscal Year 1995 Budget for the Small Business
Administration, 103d Cong., 2d sess., February 22, 1994, S. Hrg. 103-
583 (Washington: GPO, 1994), p. 20.
\34\ U.S. Congress, House Committee on Small Business, SBA's Budget
for Fiscal Year 1995, 103d Cong., 2d sess., February 24, 1994, Serial
No. 103-68 (Washington: GPO, 1994), p. 7. The SBA's 7(a) loan guaranty
program ran out of budget authority in April 1993, causing a temporary
shutdown of SBA 7(a) lending until a supplemental appropriation was
enacted to restart the program. The 7(a) loan guaranty program's
financing issues in 1993 most likely influenced congressional debate
concerning the SBA's subsidy costs of direct lending. See U.S.
Congress, Senate Committee on Small Business, Hearing on the Small
Business Administration's FY1994 Budget, 103d Cong., 1st sess., July
22, 1993, S. Hrg. 103-297 (Washington: GPO, 1993), pp. 4-14.
\35\ The last loan issued under the Disabled Assistance Loan
program was in FY1998. See U.S. Congress, House Committee on Small
Business, Summary of Activities, 105th Cong., 2d sess., January 2,
1999, H. Rept. 105-849 (Washington: GPO, 1999), p. 8.
---------------------------------------------------------------------------
Costly Lessons Learned from the Era of Participating Securities
In 1994, the SBA established the congressionally authorized
SBIC Participating Securities Program to encourage equity
investments in startup and early stage small businesses.\36\
The program was designed to fill a perceived investment gap
created by the SBIC program's focus on mid- and later-stage
small businesses.
---------------------------------------------------------------------------
\36\ P.L. 102-366, the Small Business Credit and Business
Opportunity Enhancement Act of 1992 (Title IV, the Small Business
Equity Enhancement Act of 1992) authorized the SBA to create the SBIC
participating securities program. Participating securities are
redeemable, preferred, equity-type securities issued by SBICs in the
form of limited partnership interests, preferred stocks, or debentures
with interest payable only to the extent of earnings.
---------------------------------------------------------------------------
On October 1, 2004, President George W. Bush ordered the
SBA to stop issuing new commitments for participation
securities, beginning a process to end the program that is
still underway.\37\ The Bush administration issued the order
because the program experienced a paper loss of $2.7 billion
during the early 2000s as investments in technology startup and
early stage small businesses lost much of their stock value at
that time.\38\ Congressional reaction to the Bush
administration's decision reflected partisan differences.
---------------------------------------------------------------------------
\37\ U.S. Congress, House Committee on Small Business, Private
Equity for Small Firms: The Importance of the Participating Securities
Program, 109th Cong., 1st sess., April 13, 2005, Serial No. 109-10
(Washington: GPO, 2005), pp. 5, 33; and U.S. Small Business
Administration, ``SBIC Program: FAQs 7. What is the status of the
Participating Securities Program?'' at http://www.sba.gov/content/faqs.
\38\ U.S. Small Business Administration, ``Offering Circular,
Guaranteed 4.727% Participating Securities Participation Certificates,
Series SBIC-PS 2009-10 A,'' February 19, 2009, at http://www.sba.gov/
content/sbic-ps-2009-10-cusip-831641-ep6; U.S. Congress, Senate
Committee on Small Business and Entrepreneurship, The President's
FY2006 Budget Request for the Small Business Administration, 109th
Cong., 1st sess., February 17, 2005, S. Hrg. 109-47 (Washington: GPO,
2005), pp. 6-14, 33-34, 118-119; and U.S. Congress, House Committee on
Small Business, Proposed Legislative Remedy for the Participating
Securities Program, 109th Cong., 1st sess., July 27, 2005, Serial No.
109-27 (Washington: GPO, 2005), pp. 1-5, 11-15.
---------------------------------------------------------------------------
Congressional Republicans, the majority party in both
Houses during the 108th (2003-2005) and 109th Congresses (2005-
2007), supported the Bush administration's decision to end the
program. They initially proposed a replacement program
featuring enhanced safeguards to reduce the risk of investment
losses.\39\ The Bush administration expressed little enthusiasm
for the proposal, arguing that it did not go far enough to
prevent future losses.\40\ As a result, the proposal was
dropped. Republicans on the House Committee on Small Business
later proposed allowing the SBA to issue up to $300 million
annually in participating securities, but that proposal was not
supported by the Bush administration and it was not
enacted.\41\
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\39\ H.R. 3429, to amend the Small Business Investment Act of 1958
to establish a participating debenture program, and its companion bill
in the Senate (S. 1923, the Small Business Investment and Growth Act of
2005) would have authorized the SBA to issue a deferred-interest
debenture with accrued interest unconditionally payable by the SBIC 5
years after issuance and semi-annually thereafter. Additional payments
would have been required if the SBIC has gross receipts, as defined by
the statute. See U.S. Congress, House Committee on Small Business,
Proposed Legislative Remedy for the Participating Securities Program,
109th Cong., 1st sess., July 27, 2005, Serial No. 109-27 (Washington:
GPO, 2005), p. 4.
\40\ U.S. Congress, House Committee on Small Business, Proposed
Legislative Remedy for the Participating Securities Program, 109th
Cong., 1st sess., July 27, 2005, Serial No. 109-27 (Washington: GPO,
2005), pp. 3-5.
\41\ H.R. 5352, the Small Business Reauthorization Act of 2006,
would have authorized the SBA to issue $300 million in participating
securities in FY2007, FY2008, FY2009, and FY2010.
---------------------------------------------------------------------------
Congressional Democrats understood why the Bush
administration ended the program, but they wanted it to be
replaced. They advocated the creation of new venture capital
programs targeting startups, early stage small businesses, and
socially disadvantaged/minority small business owners; and the
reinstatement of a revised participating securities program,
with reforms designed to make it less likely to incur losses,
but also with the recognition that appropriations may be
necessary to subsidize the program.\42\ None of these proposals
were enacted into law.
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\42\ See H.R. 4565, the Angels Nurture Growing Entrepreneurs into
Long-term Successes (ANGELS) Act; and H.R. 3567, the Small Business
Investment Expansion Act of 2007. Also see U.S. Congress, House
Committee on Small Business, Private Equity for Small Firms: The
Importance of the Participating Securities Program, 109th Cong., 1st
sess., April 13, 2005 (Washington: GPO, 2005), pp. 3-5, 18-23, 30-32.
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Today, the SBA's participating securities program's losses
are often cited by congressional Republicans and others who
argue that the SBA's scope of operations should be limited to
protect taxpayers from being exposed to losses associated with
its lending and venture capital programs.
Austerity Versus Expansion in the Aftermath of the Great Recession
Partisan differences concerning the SBA's future reached
new heights during the 111th, 112th, and 113th Congresses. The
magnitude of the economic difficulties resulting from the
``Great Recession'' (December 2007 to June 2009) led most
congressional Democrats to support legislative efforts to
increase Federal Government spending, including increased
spending for the SBA. Most congressional Republicans opposed
these efforts, especially given the relatively large increases
in the annual Federal deficit and in the Nation's debt during
this time period. The defeat, retirement, and resignation of
many political moderates from Congress during these Congresses
further intensified partisan differences, and reduced the
likelihood of achieving legislative compromises.
These divisions also framed debates over small business
policy, particularly in the realm of small business
lending.\43\ During and immediately following the Great
Recession, the SBA's guaranteed business lending programs,
which in good economic times typically generate sufficient
revenue from fees and collateral liquidations to pay for loan
defaults, experienced funding shortfalls due to higher than
anticipated loan defaults and lower than anticipated revenue
from collateral liquidations (primarily due to falling
commercial real estate values). Congress provided the SBA $83.0
million in FY2010, $82.8 million in FY2011, $210.8 million in
FY2012, $319.7 million in FY2013, and $111.6 million in FY2014
to cover these expenses.
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\43\ For more analysis, see Rebel A. Cole, How Did the Financial
Crisis Affect Small Business Lending in the United States?, U.S. Small
Business Administration--Office of Advocacy, November 2012, at http://
www.sba.gov/sites/default/files/files/rs399tot.pdf.
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Many congressional Republicans have advocated policies to
limit the SBA's loan losses. They often call into question the
efficacy and efficiency of the SBA's lending programs given
continued weakness in small business job growth and the
magnitude of the loan losses. Many congressional Democrats have
argued that policies to limit SBA loan losses typically involve
reducing the SBA's scope of operations. They argue that such
actions might harm the economic recovery.
United Government in the 111th Congress: Priming the Pump for Small
Business Lending
The Democratic 111th Congress convened on January 3, 2009,
2 years into the Great Recession. Some, including most
congressional Democrats and President Barack Obama, argued that
the SBA should be provided additional resources to assist small
businesses in acquiring the capital necessary to start,
continue, or expand their businesses and create jobs. The SBA's
budget in FY2009 was $615.2 million. Most congressional
Republicans disagreed. They advocated business tax reduction,
financial credit market regulation reform, and Federal fiscal
restraint as the best means to help small businesses further
economic growth and job creation.\44\
---------------------------------------------------------------------------
\44\ U.S. Small Business Administration, ``Administration Announces
New Small Business Commercial Real Estate and Working Capital
Programs,'' February 5, 2010, at http://www.sba.gov/sites/default/
files/sba_rcvry_factsheet_cre_refi.pdf; and Susan Eckerly, ``NFIB
Responds to President's Small Business Lending Initiatives,''
Washington, DC, October 21, 2009, at http://www.nfib.com/newsroom/
newsroom-item/cmsid/50080/; and NFIB, ``Government Spending,''
Washington, DC, at http://www.nfib.com/issues-elections/issues-
elections-item/cmsid/49051/.
---------------------------------------------------------------------------
With President Obama's support, Congress passed P.L. 111-5,
the American Recovery and Reinvestment Act of 2009 (ARRA) and
P.L. 111-240, the Small Business Jobs Act of 2010 (SBJA). Both
measures passed the House and Senate with minimal GOP support.
These acts made numerous changes to the SBA's programs in an
effort to enhance small business access to capital. For
example, ARRA provided the SBA an additional $730 million (more
than doubling the agency's budget), including $375 million to
temporarily subsidize SBA loan guaranty fees and increase the
7(a) loan guaranty program's maximum loan guaranty percentage
to 90 percent.\45\ The fee reductions were designed to increase
the demand for SBA guaranteed loans by reducing borrower costs;
and the higher loan guaranty percentage was designed to
increase the supply of SBA guaranteed loans by reducing private
lender's exposure to the risk of losses in case of a default.
Congress subsequently provided another $265 million and
authorized the SBA to reprogram another $40 million to extend
the fee reductions and loan modifications through May 31, 2010.
---------------------------------------------------------------------------
\45\ ARRA affected many programs and agencies, and is expected to
provide over $840 billion from FY2009 through FY2019, including $290.7
billion for tax relief; $261.2 billion for contracts, grants, and
loans; and $264.4 billion for entitlements. See The Recovery
Accountability and Transparency Board, ``The American Recovery and
Reinvestment Act of 2009,'' at http://www.recovery.gov/arra/
Transparency/fundingoverview/Pages/fundingbreakdown.aspx. The SBA's
7(a) loan guaranty program provides an 85 percent guaranty for loans of
$150,000 or less; and a 75 percent guaranty for loans greater than
$150,000 to the statutory limit of $3.75 million (75 percent of $5
million).
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Among other things, the SBJA authorized a $30 billion Small
Business Lending Fund to encourage community banks to provide
small business loans ($4 billion was subsequently issued) and a
$1.5 billion State Small Business Credit Initiative to provide
funding to participating States with small business capital
access programs. The act also provided $510 million to continue
the SBA's fee reductions and loan modifications through
December 31, 2010, and made numerous changes to the SBA's loan
guaranty and contracting programs to enable the SBA to expand
its assistance to small businesses.\46\
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\46\ Among other things, the SBJA authorized higher SBA loan
limits, created new size standards to enable more small businesses to
qualify for assistance, and provided about $12 billion in small
business tax relief. P.L. 111-322, the Continuing Appropriations and
Surface Transportation Extensions Act, 2011, authorized the use of any
funding remaining from the SBJA to extend the SBA fee reductions and
loan modifications through March 4, 2011, or until the available
funding was exhausted, which occurred on January 3, 2011.
---------------------------------------------------------------------------
Divided Government in the 112th and 113th Congresses: Impasse Inspires
Ingenuity
Partisan disagreement concerning the best way to assist
small businesses following the Great Recession continued during
the 112th and 113th Congresses. Both of these Congresses had a
Republican majority in the House and a Democratic majority in
the Senate. During the 112th Congress (2011-2013), the economic
recovery was relatively slow and uneven across the Nation,
unemployment remained at relatively high levels, and business
credit markets remained tight. Although the economy improved
somewhat during the 113th Congress (2013-2015), unemployment
remained relatively high during the first session of the
Congress and began to improve during the second session.
The Nation's continuing economic difficulties led some,
including most congressional Democrats and President Obama, to
support another round of additional funding for the SBA as a
means to spur economic growth and create jobs. However, as
mentioned previously, the slow economic recovery also led to
historically high default rates for the SBA's lending programs,
making proposals to expand the SBA's scope of operations to
foster economic growth and job creation more difficult for many
congressional Republicans to accept.
The Republican Party's majority status in the House during
the 112th and 113th Congresses changed the political dynamic. A
political deadlock ensued as bills seeking to expand the SBA's
scope of operations were, for the most part, blocked by the
House Committee on Small Business; and bills seeking to reduce
the SBA's scope of operations were, for the most part, blocked
by the Senate Committee on Small Business and Entrepreneurship.
The close, longstanding personal relationship of Senator
Mary Landrieu, then-chair of the Senate Committee on Small
Business and Entrepreneurship, and Senator Olympia Snowe, then-
ranking member on the committee, helped to diffuse partisan
conflict in that committee, at least to some extent.\47\ For
example, during the 112th Congress, Senator Snowe cosponsored
six bills introduced by Senator Landrieu, and Senator Landrieu
cosponsored nine bills introduced by Senator Snowe.
Nonetheless, during the 111th Congress, Senator Snowe strongly
objected to portions of both ARRA and the SBJA (especially the
Small Business Lending Fund), which were enacted despite the
objections of many congressional Republicans.
---------------------------------------------------------------------------
\47\ Senator Snowe was widely regarded as a pragmatic, political
moderate, willing to work with both Democrats and Republicans on
legislation. Also, Senator Snowe served on the Senate Committee on
Small Business and Entrepreneurship from 2000 to 2003, as the
committee's chair from 2003 to 2007, and as ranking member from 2007
until her retirement from the Senate in 2013.
---------------------------------------------------------------------------
The extent of the partisan division between the House and
Senate Small Business Committees during the 112th Congress was
highlighted by the inability of the two committees to agree on
language to reauthorize the SBA. After agreeing to two short-
term reauthorizations early in the 112th Congress, disagreement
over the SBA's future led to a breakdown in talks between the
two committees concerning the SBA's statutory authorization,
which expired on July 31, 2011.\48\ Since then, the two
committees have not reopened discussions concerning the
agency's statutory authorization. The SBA is able to continue
operations through authority provided by appropriations acts.
---------------------------------------------------------------------------
\48\ P.L. 108-447, the Consolidated Appropriations Act, 2005,
provided reauthorization for the SBA for FY2005 and FY2006. That was
the last long-term reauthorization provided to the SBA. Congress
subsequently passed, and the President signed, 15 short-term
reauthorizations for the SBA, including 2 short-term reauthorizations
early in the 112th Congress.
---------------------------------------------------------------------------
Although partisan differences between the House and Senate
Small Business Committees prevented legislation from reaching
the other body through the normal lawmaking process, the
leaders of the two committees sought other ways to enact small
business legislation. For example, during the 112th Congress,
several bills supported by Representative Sam Graves, chair of
the House Committee on Small Business, were included by the
House Committee on Armed Services in their markup of H.R. 4310,
the National Defense Authorization Act for Fiscal Year 2013.
The Department of Defense (DOD) is the Federal Government's
largest contractor, providing the House and Senate Committees
on Armed Services jurisdiction over issues related to
government contracting, including small business contracting.
The annual National Defense Authorization Act is generally
regarded as ``must-pass'' legislation.
The small business provisions added to the National Defense
Authorization Act for Fiscal Year 2013 affected Federal
procurement center representatives; small business size
standards; Federal agency contracting training requirements and
acquisition planning; the Federal Government's procurement
goals for contracts awarded to small businesses; the bundling
of Federal contracts; the training and evaluation of senior
executives; small business mentor-protege programs; limitations
on subcontracting, penalties, and subcontracting plans; notices
of subcontracting opportunities; publication of certain
documents; and contract bundling. The Senate Committee on Armed
Services added a provision affecting the SBA's HUBZone program,
which was sponsored by Senator Sherrod Brown, who was not a
member of the Committee on Small Business and
Entrepreneurship.\49\ These provisions were generally
considered to have little chance of passage because of the
opposition of either the House or the Senate Small Business
Committee. However, because these provisions were attached to a
bill considered ``must-pass'' legislation, and that legislation
was not subject to the review of the Small Business Committees,
the added provisions were enacted into law (P.L. 112-239).
---------------------------------------------------------------------------
\49\ The provision addressed the eligibility of BRAC base closure
areas in the Historically Underutilized Business Zone Empowerment
Contracting (HUBZone) program. The HUBZone program is a small business
Federal contracting assistance program, administered by SBA, whose
primary objective is creating jobs and increasing capital investment in
distressed communities. It provides participating small businesses
located in areas with low-income, high-poverty rates, or high-
unemployment rates with contracting opportunities in the form of ``set-
asides,'' sole-source awards, and price-evaluation preferences. For
more information, see CRS Report R41268, Small Business Administration
HUBZone Program, by Robert Jay Dilger.
---------------------------------------------------------------------------
During the 113th Congress, two provisions sought by Senator
Landrieu were included in the Consolidated Appropriations Act,
2014 (P.L. 113-76), providing additional examples of using
``must-pass'' legislation as a legislative vehicle to bypass
the authorizing committees. One of the provisions increased the
SBIC program's annual authorization to $4 billion from $3
billion, and the other provided $8 million for the State Trade
and Export Promotion (STEP) grant program for FY2015.\50\
---------------------------------------------------------------------------
\50\ For further information and analysis concerning the
appropriations process, see CRS Report R42388, The Congressional
Appropriations Process: An Introduction, by Jessica Tollestrup and CRS
Report R42098, Authorization of Appropriations: Procedural and Legal
Issues, by Jessica Tollestrup and Brian T. Yeh. For further information
and analysis concerning the STEP program, see CRS Report R43155, Small
Business Administration Trade and Export Promotion Programs, by Sean
Lowry.
---------------------------------------------------------------------------
Conclusion
Small business policymaking in Congress has evolved over
time from a relatively bipartisan, noncontroversial
policymaking environment to one that is increasingly
characterized by partisan differences. Most Members agree that
small businesses are important to the U.S. economy, but
partisan differences emerge when considering the means to best
help small businesses. These differences tend to become
accentuated during economic downturns because many
congressional Democrats view the SBA as a vehicle to promote
economic growth and job creation, while many congressional
Republicans object to spending programs that increase the
Federal deficit or add to the Federal debt, preferring policies
that reduce Federal taxes and business regulation. These
partisan differences have become magnified in recent years
given the magnitude of the Great Recession, increased attention
to fiscal responsibility, and growth in overall Federal debt.
In the past, small business policymaking often followed
regular order, featuring committee hearings, followed by
committee markups in both the House and Senate Small Business
Committees, open floor debate in both Chambers, and a
conference committee to resolve any differences on the
legislation under consideration. Today, especially under
divided government and in the absence of political moderates
willing to work within and between the Small Business
Committees, it is less likely that small business policymaking
will follow regular order. Instead, committee hearings and
markups take place, but knowing that the other body is not
likely to address the legislation there is generally less
incentive to explore all sides of the issue--leading to an
increased number of hearings that focus on the presentation of
a particular viewpoint, rather than discussions of how to find
a compromise solution.
In addition, committee leaders and others are now more
likely to seek alternative legislative means to achieve their
goals, such as attaching small business legislation to other
bills considered ``must-pass'' legislation (e.g., national
defense authorizations and appropriations bills). Thus, even in
the most divided and partisan circumstances, Congress can still
pass small business legislation. However, enacting major small
business legislation on the scale of ARRA and the SBJA is
extremely difficult when Congress is divided, and partisan
differences run deep.
Use of the Appropriations Process to Influence Census Bureau Policy:
The Case of Adjustment
Jennifer D. Williams
Specialist in American National Government
----------
Persistent differential undercounts of minorities and
less affluent U.S. residents in the decennial census--
the greater tendency for the census to miss them than
to miss whites and wealthier people--occasioned much
past debate about using sample-survey estimates to
``adjust'' the census statistically. This report
examines failed pro- and anti-adjustment bills in the
100th through 104th Congresses, then tracks H.R. 2267
(P.L. 105-119) from the 105th Congress, which funded
the Census Bureau in FY1998. Section 209 of the bill,
as reported by the House Appropriations Committee, then
strengthened during House consideration of H.R. 2267
and in conference committee, provided for expedited
judicial review of civil suits to block sampling.
Accordingly, on January 25, 1999, the Supreme Court
issued its decision in U.S. Department of Commerce v.
U.S. House of Representatives and Clinton v. Glavin
(525 U.S. 316, 119 S. Ct. 765 (1999)) that Section 195
of Title 13 U.S.C. banned incorporating sample-survey
results into the decennial census count for
apportionment. The Court declined to decide whether the
use of sampling prohibited under Section 195 would be
unconstitutional as well.
Background
The decennial census is a cornerstone of representative
government in the United States. The Constitution \1\ mandates
a complete population count every 10 years so that the States
can be assigned seats in the House of Representatives
``according to their respective numbers . . . .'' The first
census, in 1790, was overseen by Secretary of State Thomas
Jefferson and conducted by U.S. marshals and their assistants.
They reported a total of almost 4 million residents.\2\ From
this beginning, the census has developed into a complex,
multibillion-dollar operation conducted by the Bureau of the
Census in the U.S. Department of Commerce. Census data not only
are the basis for House apportionment and within-State
redistricting, but also are essential for documenting the
growth, distribution, and characteristics of the population.
Besides being widely used by businesses, researchers, and all
levels of government, census data are incorporated into certain
formulas that allocate more than $450 billion per year in
Federal program funds to States and localities. States,
localities, and all population groups--racial minorities,
Hispanics or Latinos (hereafter, Hispanics), and majority
whites--have a considerable stake in being included in each
census. To the extent that they are undercounted, they can lose
representation and Federal money.
---------------------------------------------------------------------------
\1\ U.S. Constitution, Article I, Section 2, clause 3, as modified
by Section 2 of the 14th Amendment.
\2\ The Census Bureau's history site states that ``As the nominal
director of the 1790 census, Jefferson certified the combined local
results reported by each marshal. He also shared President Washington's
concern that the first census had significantly undercounted the
population, perhaps by several hundred thousand residents.'' U.S.
Bureau of the Census, ``Directors 1790-1810,'' at http://
www.census.gov/history/www/census_then_now/director_biographies/
directors_1790_-_1810.html. According to another source, the ``degree
of responsibility'' of the Secretary of State for the 1790 census ``is
not clear.'' A. Ross Eckler, The Bureau of the Census (New York:
Praeger, 1972), p. 7.
---------------------------------------------------------------------------
Although the census has evolved during more than two
centuries, broad congressional authority over it remains as
stated in the Constitution: ``The actual Enumeration . . .
shall be made . . . in such Manner as they [Congress] shall by
Law direct.'' From the act of March 1, 1790, which specified
how the first census was to be conducted and what information
was to be collected, to the present, Congress has played an
important role in census operations. Census law now is codified
in Title 13 of the United States Code, which, among other
provisions, delegates responsibility for the decennial count to
the Secretary of Commerce and the ``Director of the Census,''
who ``shall perform such duties as may be imposed upon him by
law, regulations, or orders of the Secretary.'' \3\ Congress at
times proposes separate bills to alter aspects of the decennial
census or other Census Bureau programs and holds oversight
hearings to review the conduct of these programs. In addition,
Congress affects the Bureau's operations through the
appropriations process. As a former Bureau Director observed:
---------------------------------------------------------------------------
\3\ 13 U.S.C. 21.
The regular appearances before the House and Senate
appropriations subcommittees are undoubtedly the most crucial
of all the congressional contacts required of Census and
[Commerce] Departmental staffs. The outcome of these hearings
determines whether the bureau can undertake some or all of the
new work that has been approved by the Department and the
Office of Management and Budget. Ordinarily, adverse
subcommittee actions are limited to the denial of some or all
of the increases requested, and funds are usually granted to
permit the continuation of all previously approved programs. In
some cases, however, . . . funds may be cut below the level of
the preceding year . . . . In view of the stakes involved, it
is not surprising that agency preparations for the
appropriation hearings extend over a number of weeks, with
intensive briefing sessions and preparation of quite detailed
back-up material for dealing with unforeseen inquiries.\4\
---------------------------------------------------------------------------
\4\ A. Ross Eckler, The Bureau of the Census (New York: Praeger,
1972), pp. 146-147.
---------------------------------------------------------------------------
Census Undercount and the Adjustment Debate in Congress
In one notable example from the 1990s, the appropriations
process wielded influence well beyond funding; it forced an
abrupt change in the Census Bureau's 2000 census strategy and,
from then to the present, largely settled an issue that
previous legislation and litigation had not resolved. The issue
was whether sampling in connection with the decennial census
should occur in order to estimate and attempt to correct census
miscounts (undercounts and overcounts)--that is, to ``adjust''
the census results.
Of special concern were the persistent differential
undercounts of minorities and less affluent members of
society--the greater tendency for the census to miss them than
to miss whites and wealthier people. Post-Enumeration Survey
(PES) estimates of 1990 census coverage indicated a net
percentage undercount of 0.7 percent for non-Hispanic whites,
compared with 4.6 percent for blacks, 2.4 percent for Asians or
Pacific Islanders,\5\ 12.2 percent for American Indians on
reservations, and 5.0 percent for Hispanics. The net percentage
undercount of the total population was estimated at 1.6
percent.\6\
---------------------------------------------------------------------------
\5\ In 1997, the U.S. Office of Management and Budget revised the
designations of race and Hispanic ethnicity for Federal reporting
purposes. The category ``Asians or Pacific Islanders'' became
``Asians'' and ``Native Hawaiians or other Pacific Islanders.'' U.S.
Office of Management and Budget, ``Revisions to the Standards for the
Classification of Federal Data on Race and Ethnicity,'' 62 Federal
Register 58789, October 30, 1997.
\6\ CRS Report R40551, The 2010 Decennial Census: Background and
Issues, by Jennifer D. Williams. The 1990 census undercount estimates
reported here reflect revisions that the Bureau made after July 1990.
---------------------------------------------------------------------------
When Commerce Secretary Robert Mosbacher announced that the
Census Bureau would not adjust the 1990 census numbers, a New
York Times reporter responded as follows:
The Commerce Department's decision not to adjust the 1990
census upward is a special blow to New York City, Newark and
other fiscally struggling cities in the region where local
officials said their large populations of minorities,
immigrants and homeless people were severely undercounted.
New York City, for example, would have gained nearly
230,000 people, increased its representation in the State
Legislature and gained millions more dollars in Federal aid if
the Census Bureau had adjusted its figure of about 7.3 million
people. The city had estimated its population at 7.8 million to
8 million.
Similarly, the 1990 census shows Newark with 275,221
residents, down from 329,248 in 1980 and thousands fewer than
city officials believe.\7\
---------------------------------------------------------------------------
\7\ Felicia R. Lee, ``No Census Adjustment Hits Big Cities Hard,''
New York Times, July 16, 1991, p. A16.
The view from Indiana when adjustment was still a
possibility was quite different, however. The U.S. General
Accounting Office (now Government Accountability Office)
estimated that an adjusted 1990 census could mean a net loss to
the State of $13.2 million per year in Federal Medicaid and
social services block grant allocations.\8\ According to the
Indianapolis Star:
---------------------------------------------------------------------------
\8\ U.S. General Accounting Office, Formula Programs: Adjusted
Census Data Would Redistribute Small Percentage of Funds to States,
GAO/GGD-92-12, November 1991, pp. 20-26. The $13.2 million net loss
took into account an annual estimated gain of $11,000 in Federal
highway aid to Indiana.
Efforts to adjust the 1990 census figures after the count
has been completed have Gov. Evan Bayh ``screaming bloody
murder.''
That was the governor's reaction Friday to a report by the
federal General Accounting Office about a proposed adjustment
to the figures. . . .
Indiana's population would be increased very slightly by
the adjustment. But the state's proportional share of
population would decline, causing a drop-off of tax dollars
from Washington.
``It's an outrage what Washington is proposing to do to
Indiana,'' Bayh said. . . .
``The federal government, through some accounting
chicanery, is proposing to take millions from Hoosier taxpayers
. . . and is once again turning its back on Indiana.'' \9\
---------------------------------------------------------------------------
\9\ Staff report, ``Bayh irate over plan to adjust '90 census,''
Indianapolis Star, November 23, 1991.
The undercount issue had been contentious for decades.
Supporters of adjustment argued that it was necessary to make
the census more equitable for apportionment, redistricting, and
other purposes. Opponents maintained that the procedure was
flawed, subjective, or both and could leave the census
vulnerable to political manipulation. The Commerce Department
and the Census Bureau were sued, repeatedly but without success
for the plaintiffs, over the 1980 and 1990 census undercounts.
A series of pro- and anti-adjustment measures, summarized
below, failed in the 100th through 104th Congresses.\10\ Unless
otherwise noted, no action beyond committee and subcommittee
referrals occurred on the proposals.
---------------------------------------------------------------------------
\10\ See CRS Report 94-89, Decennial Census Coverage: The
Adjustment Issue, by Jennifer D. Williams; CRS Report 97-137, Census
2000: The Sampling Debate, by Jennifer D. Williams; and CRS Report
RL30182, Census 2000: Sampling as an Appropriations Issue in the 105th
and 106th Congresses, by Jennifer D. Williams (archived reports,
available from the author).finagling this footnote deg.
\11\ U.S. Congress, House Committee on Post Office and Civil
Service, Subcommittee on Census and Population, The Decennial Census
Improvement Act, hearing on H.R. 3511, 100th Cong., 2d sess., March 3,
1988 (Washington, DC: GPO, 1988), pp. 1-2, 5, and 89.
---------------------------------------------------------------------------
100th Congress
H.R. 3511 (Dymally), to require adjustment to correct for
any census undercounts and overcounts, was introduced and
referred to the Committee on Post Office and Civil Service on
October 20, 1987. The bill was referred to the Subcommittee on
Census and Population on October 25, 1987.
At a subcommittee hearing on the bill, Chairman Mervyn Dymally
expressed his ``strong feelings'' about the ``historical,
substantial and disproportionate undercount of minorities and
the poor in the decennial census . . . . [T]he need to
guarantee equal representation under the Fourteenth Amendment,
the need to insure compliance with the Voting Rights Act, and
the need to properly allocate federal funds compel a
satisfactory solution to the problem of a differential
undercount.''
Robert Ortner, as the Reagan administration's Undersecretary of
Commerce for Economic Affairs, testified in support of the
Commerce Department's decision against planning to adjust the
1990 census: ``There is no unique model or system that would
produce a set of data which all statisticians would support.
Different statisticians employ different methodologies and
derive different estimates of undercount or overcount. These
kinds of numbers are essentially judgmental and subjective. . .
.'' Dr. Ortner continued: ``Remember, Mr. Chairman, this is a
zero sum game. If I get more money or more representation, then
you lose on both of those counts . . . based on population
numbers created from sampling estimates[;] we can measure
sampling errors, but . . . nonsampling errors . . . have not
been dealt with.''
Also testifying was Barbara Bailar, formerly the Census Bureau's
Associate Director for Statistical Standards and Methodology,
who had resigned from the Bureau over the adjustment issue. In
her assessment, ``The 1990 methods of estimating the
undercount, and hence for correcting the data, are far superior
to what they were in 1980. They can be used to make our census
counts much more accurate.'' \11\
S. 1942 (Moynihan), a companion bill to H.R. 3511, was
introduced and referred to the Committee on Governmental
Affairs on December 11, 1987.
101st Congress
H.R. 526 (Dymally), like H.R. 3511 in the 100th Congress,
would have required adjustment to correct any census
undercounts or overcounts. The bill was introduced and referred
to the Post Office and Civil Service Committee on January 19,
1989, and to the Census and Population Subcommittee on February
13, 1989. Unfavorable executive comment was received from the
Commerce Department on June 6, 1989.
H.R. 5741 (Sawyer) would have amended Title 13 of the U.S.
Code to require the Commerce Secretary to determine whether the
tabulations of State populations from the 1990 census and
future censuses should be adjusted to correct any undercounts
or overcounts. The bill was introduced and referred to the Post
Office and Civil Service Committee on September 27, 1990.
S. Res. 338 (Sasser) expressed the sense of the Senate that
the Commerce Department should use ``statistical correction
methodology to achieve a fair and accurate 1990 census.'' The
resolution was introduced and referred to the Governmental
Affairs Committee on October 11, 1990.
S. 264 (Moynihan), a companion bill to H.R. 526, was
introduced and referred to the Governmental Affairs Committee
on January 25, 1989.
102d Congress
H. Res. 214 (Payne) called for statistical adjustment of the
1990 census results to include people missed by the census. The
resolution was introduced and referred to the Post Office and
Civil Service Committee on August 2, 1991, and to the Census
and Population Subcommittee on August 12, 1991.
H.R. 90 (Sawyer), like H.R. 5741 in the 101st Congress,
would have amended Title 13 of the U.S. Code to require the
Commerce Secretary to determine whether the tabulations of
State populations from the 1990 census and future censuses
should be adjusted to correct any undercounts or overcounts.
The bill was introduced and referred to the Post Office and
Civil Service Committee on January 3, 1991, and to the Census
and Population Subcommittee on January 31, 1991.
H.R. 2316 (Coleman), to direct the Commerce Secretary to
take measures ensuring that 1990 census undercounts were
corrected, was introduced and referred to the Post Office and
Civil Service Committee on May 14, 1991, and to the Census and
Population Subcommittee on May 20, 1991.
H.R. 2911 (Schumer) would have established a commission to
``investigate and study'' the enumeration methods used in 1990,
including whether data obtained by these methods ``should be
subject to statistical adjustment and, if so, how such an
adjustment should be made. . . .'' The bill was introduced and
referred to the Post Office and Civil Service Committee on July
16, 1991, and to the Census and Population Subcommittee on July
22, 1991.
H.R. 5478 (Moran) would have stipulated that adjusted 1990
census data be used to administer any Federal benefits program
requiring the use of the most recent census data. The bill was
introduced and referred to the Post Office and Civil Service
Committee on June 24, 1992, and to the Census and Population
Subcommittee on June 30, 1992.
H.R. 5865 (Moody) would have prohibited the Commerce
Department and the Census Bureau from using appropriated funds
to adjust the 1990 census or any intercensal estimates. The
measure was introduced and referred to the Post Office and
Civil Service Committee on August 12, 1992, and to the Census
and Population Subcommittee on August 20, 1992.
S.J. Res. 21 (Sasser), like S. Res. 338 in the 101st
Congress, expressed the sense of Congress that the Commerce
Department should use ``statistical correction methodology to
achieve a fair and accurate 1990 census.'' The resolution was
introduced and referred to the Governmental Affairs Committee
on January 14, 1991.
S. 28 (Moynihan) would have amended Title 13 of the U.S.
Code to require that the Commerce Secretary adjust census data,
including 1990 census data, to correct any undercounts or
overcounts. The bill was introduced and referred to the
Governmental Affairs Committee on January 14, 1991.
S. 1480 (Moynihan), a companion bill to H.R. 2911, was
introduced and referred to the Governmental Affairs Committee
on July 16, 1991.
S. 3178 (Specter), a companion bill to H.R. 5865, was
introduced and referred to the Governmental Affairs Committee
on August 12, 1992.
S. 3205 (Mack), a companion bill to H.R. 5478, was
introduced and referred to the Governmental Affairs Committee
on August 12, 1992.
H.R. 2608 (Smith), FY1992 appropriations legislation for the
Departments of Commerce, Justice, and State, the judiciary, and
related agencies (CJS), passed the House on June 13, 1991, and
the Senate on July 31, 1991. Each Chamber agreed to the
conference report on H.R. 2608 (H. Rept. 102-233) on October 3,
1991, and the measure became law (P.L. 102-140) on October 28,
1991.
Although H.R. 2608 was enacted without any adjustment-related
provision, the Senate, in its July 30, 1991, consideration of
the bill, had approved three amendments on the topic. They are
discussed below.
S. Amdt. 933 (Hollings) was introduced and agreed to by voice
vote on July 30, 1991. S. Amdt. 934 (Hollings), amending S.
Amdt. 933, also was introduced and agreed to by voice vote on
this date. The text of the amendments (933 in roman and 934 in
italics) was: ``The decennial census of population of 1990
shall be adjusted to reflect the changes recommended on June
21, 1991, by the Post Enumeration Commission and the Director
of the Census, except that such adjustment shall not apply to
political reapportionment.''
S. Amdt. 933, as amended by S. Amdt. 934, was then amended by S.
Amdt. 935 (Kohl), which was adopted by voice vote on July 30,
1991. S. Amdt. 935 stated: ``The Subcommittee on Government
Information and Regulation, of the Committee on Governmental
Affairs, shall report to the Senate on the use of the Post-
Enumeration Survey of the 1990 Census for purposes other than
political apportionment and shall recommend such changes as
necessary. . . .''
The conferees on H.R. 2608 deleted this provision, calling it
``an internal Senate matter.'' \12\
---------------------------------------------------------------------------
\12\ ``Conference Report on H.R. 2608,'' Congressional Record, vol.
137, part 17 (October 1, 1991), p. 24904.
---------------------------------------------------------------------------
Nonetheless, the Senate Subcommittee on Government Information
and Regulation did issue the February 1992 report called for by
S. Amdt. 935. The report alluded briefly to S. Amdts. 934 and
935:
Senator Hollings, the subcommittee [c]hair, offered an
amendment that would require that adjusted census numbers
would be used for all purposes other than apportionment.
Senator Kohl, as chair of the Governmental Affairs
Subcommittee on Government Information and Regulation,
argued that the adoption of such an amendment was
premature. It was clear that the adjusted numbers available
at that time were, for most purposes, less accurate than
the original count.\13\
---------------------------------------------------------------------------
\13\ U.S. Congress, Senate Committee on Governmental Affairs,
Subcommittee on Government Information and Regulation, Dividing the
Dollars: Issues in Adjusting Decennial Counts and Intercensal Estimates
for Funds Distribution, committee print, 102d Cong., 2d sess., February
1992, S. Prt. 102-83 (Washington, DC: GPO, 1992), p. 4.
The report noted as well:
The Census Bureau has continued to examine data from the
post-enumeration survey . . . . That research has shown the
wisdom of waiting to implement a census adjustment. The
July estimates were seriously flawed. Problems in matching
caused the undercount to be overstated in some areas.
Programing problems caused the total undercount to be
overstated. The undercount, as measured by the PES in July,
has been reduced by nearly 30 percent. . . .
Yet, while some of the problems have been solved since
July, many of the most serious problems still remain. The
adjustment model remains sensitive and the results lack
robustness. . . . Whether the numbers are to be used for
apportionment, funds distribution, or redistricting, they
lack the necessary face validity. If adjusted census
numbers are used prematurely[,] there is the risk that the
basic credibility of the census itself will be
undermined.\14\
---------------------------------------------------------------------------
\14\ Ibid., pp. 12-13.
---------------------------------------------------------------------------
103d Congress
H.R. 787 (Moran), like H.R. 5478 in the 102d Congress, would
have directed that adjusted 1990 census data be used to
administer any Federal benefits program requiring the use of
the most recent census data. The bill was introduced and
referred to the Post Office and Civil Service Committee on
February 3, 1993, and to the Census, Statistics, and Postal
Personnel Subcommittee on February 19, 1993.
S. 307 (Mack), a companion bill to H.R. 787, was introduced
and referred to the Governmental Affairs Committee on February
3, 1993.
104th Congress
H.R. 3598 (Petri), which would have amended Title 13 of the
U.S. Code to prohibit the use of sampling or other statistical
procedures to determine total State populations for House
apportionment, was introduced and referred to the Government
Reform and Oversight Committee on June 5, 1996.
Adjustment as an Appropriations Issue: Congressional Response to the
Plan for Census 2000
As preparations for the 2000 census advanced during the
Clinton administration, the Census Bureau announced, in the
Plan for Census 2000, that it would conduct two new sample
surveys intended to improve the enumeration.\15\ The first one,
for nonresponse followup, would have collected data from a
sample of housing units whose occupants had not completed their
census forms. The second survey, for ``integrated coverage
measurement'' (ICM), attracted greater congressional attention
because it would have been used to correct census miscounts.
Not by accident did more of that attention come from the House.
As indicated, for example, by the discussion of three sampling-
related Senate amendments to H.R. 2608 in the 102d Congress,
the Senate may show a definite interest in census matters, but
the House's interest arguably may be keener and more direct,
given that census results determine each State's number of
House seats.
---------------------------------------------------------------------------
\15\ U.S. Bureau of the Census, Plan for Census 2000, issued
February 28, 1996.
---------------------------------------------------------------------------
In response to the Census Bureau's announcement, the
Government Reform and Oversight Committee, the Bureau's House
oversight committee in the 104th Congress, stated its arguments
for and against sampling in a report adopted on September 18,
1996. A majority of the committee found that the Bureau
``should not use sampling methods to complete or adjust the
actual enumeration'' in 2000. They pointed to weaknesses in the
sampling design, citing, for example, the concern of Kenneth
Wachter, a professor of statistics and demography at the
University of California-Berkeley, that heterogeneity would
have been a problem if the 1990 census results had been
adjusted and remained a problem for 2000.\16\ The majority also
questioned whether anything other than a strict headcount for
apportionment would be legal and constitutional, and whether
sampling would undermine the quality of small-area data and
public confidence in the census. Another concern expressed was
the operational feasibility of completing two complex sample
surveys by the December 31, 2000, legal deadline for producing
official census numbers.
---------------------------------------------------------------------------
\16\ Dr. Wachter was a member of the Commerce Secretary's Special
Advisory Panel on Census Adjustment from 1989 to 1991. For ICM, the
sampling universe was to be divided into demographic subgroups, or
``post-strata,'' with certain characteristics, such as black male
renters ages 30 to 49. An undercount rate was to be estimated for each
post-stratum, ``then assumed to hold constant across relatively large
geographical areas.'' Heterogeneity refers to the failure of ``these
assumptions of constancy . . . .'' U.S. Congress, House Committee on
Government Reform and Oversight, Sampling and Statistical Adjustment in
the Decennial Census: Fundamental Flaws, 104th Cong., 2d sess., H.
Rept. 104-821 (Washington, DC: GPO, 1996), p. 4.
---------------------------------------------------------------------------
In dissenting opinions, 18 committee members asserted that
sampling was necessary to make the census more accurate, more
equitable, and less expensive:
Dr. Barbara Bryant, director of the Census Bureau under
President [George H. W.] Bush, in testimony before the House
Committee on Post Office and Civil Service, said that the
census had reached the limits of what could be done with
traditional methods.\17\ Congress has called for a census that
is less expensive and more accurate. Three separate panels of
experts convened by the National Academy of Sciences \18\ have
recommended the use of sampling and statistical methods to
achieve these goals.\19\
---------------------------------------------------------------------------
\17\ See testimony of Barbara Bryant, Director, U.S. Bureau of the
Census, in U.S. Congress, House Committee on Post Office and Civil
Service, Oversight Hearing to Review Census Adjustment Decision, 102d
Cong., 1st sess., July 16, 1991 (Washington, DC: GPO, 1991), pp. 23 and
26. The press, too, reported Dr. Bryant's assessment that adjustment
would have improved 1990 census accuracy, on average. Barbara Vobejda,
``Census Bureau Chief Disagreed with Mosbacher on Adjustments,''
Washington Post, July 17, 1991, p. A21.
\18\ See Barry Edmonston and Charles L. Schultz, eds., Modernizing
the U.S. Census, Panel on Census Requirements in the Year 2000 and
Beyond, Committee on National Statistics, National Research Council,
National Academy of Sciences (Washington, DC: National Academy Press,
1995); and Duane L. Steffey and Norman M. Bradburn, eds., Counting
People in the Information Age, Panel to Evaluate Alternative Census
Methods, Committee on National Statistics, National Research Council,
National Academy of Sciences (Washington, DC: National Academy Press,
1994). See also Andrew A. White and Keith F. Rust, eds., Preparing for
the 2000 Census, Panel to Evaluate Alternative Census Methodologies,
Committee on National Statistics, Commission on Behavioral and Social
Sciences and Education, National Research Council, National Academy of
Sciences (Washington, DC: National Academy Press, 1997). The panel's
first interim report, Sampling in the 2000 Census, was issued in 1996.
\19\ U.S. Congress, House Committee on Government Reform and
Oversight, Sampling and Statistical Adjustment in the Decennial Census:
Fundamental Flaws, 104th Cong., 2d sess., H. Rept. 104-821 (Washington,
DC: GPO, 1996), p. 23.
Two bills in the 105th Congress, both referred to the House
Government Reform and Oversight Committee without further
action, addressed the adjustment issue with opposing
objectives.
H.R. 1178 (Maloney), introduced on March 20, 1997, would
have amended Title 13, Section 195, of the U.S. Code to clarify
that sampling could be used to improve census accuracy. Section
195 provides that ``Except for the determination of population
for purposes of apportionment of Representatives in Congress
among the several States, the Secretary shall, if he considers
it feasible, authorize the use of the statistical method known
as `sampling' in carrying out the provisions of this title.''
H.R. 1220 (Petri), like H.R. 3589 in the 104th Congress,
would have prohibited the use of sampling or other statistical
procedures to determine total State populations for
apportionment. The bill was introduced on March 21, 1997.
Because legislation to resolve the adjustment issue had
failed consistently in earlier Congresses and continued to fail
in the 105th Congress, and since adjustment of the 2000 census
seemed imminent, the appropriations process in the 105th
Congress became the main forum for the sampling debate.
Congress approved H.R. 1469, FY1997 supplemental
appropriations for disaster relief, on June 5, 1997. President
Clinton vetoed the bill on June 9, 1997, in part because it
contained House language to ban the use of sampling in any
census to determine the apportionment population. A second
bill, H.R. 1871, stipulated only that, within 30 days of
enactment, the Commerce Department give Congress a detailed
report on the proposed methods for conducting the 2000 census.
The President signed this legislation on June 12, 1997 (P.L.
105-18).
On June 23 and July 24, 1997, Speaker Newt Gingrich entered
into the Congressional Record two items from the Washington
Times that expressed opposition to sampling for census
adjustment. The first was an editorial that referenced
President Clinton's favorable attitude toward adjustment in his
remarks about the disaster relief legislation, then continued:
``Why should a Republican Congress commit political suicide by
relinquishing its authority over the census to a hyper-
politicized administration?'' \20\ The second entry was a
letter to the editor by Matthew J. Glavin, president of the
Southeastern Legal Foundation, who shortly thereafter became a
plaintiff in one of the anti-adjustment lawsuits filed under
Section 209 of P.L. 105-119 (discussed below). Mr. Glavin
characterized adjustment as follows: ``Under this system, the
Bureau would make its `best guess' as to where the population
count was imagined to be low, add a magical percentage to the
head count for that area, and apply those statistical
percentages to similar areas across the nation.'' \21\
---------------------------------------------------------------------------
\20\ ``Politics and Census Numbers,'' Washington Times, June 12,
1997, reprinted in Congressional Record, vol. 143, part 8 (June 23,
1997), p. 11885.
\21\ Matthew J. Glavin, ``Best-Guess U.S. Census?,'' letter to the
editor, Washington Times, July 15, 1997, reprinted in Congressional
Record, vol. 143, part 11 (July 24, 1997), p. 15767.
---------------------------------------------------------------------------
What happened next was a notable instance of Congress
exercising its authority over an executive branch agency that
was under the purview of the opposite party.
On July 25, 1997, the House Appropriations Committee
reported H.R. 2267, the FY1998 appropriations bill for the
Departments of Commerce, Justice, and State, the judiciary, and
related agencies.\22\ The committee-approved bill withheld all
but $100 million of the $381.8 million recommended for the 2000
census, pending agreement between Congress and the
administration on census methods. Agreement was to consist of
an act authorizing these methods. The bill further stipulated
that none of the $100 million could be spent to plan, test, or
use sampling in the census to determine the apportionment
population.
---------------------------------------------------------------------------
\22\ U.S. Congress, House Committee on Appropriations, Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Bill, Fiscal Year 1998, report to accompany H.R. 2267,
105th Cong., 1st sess., H. Rept. 105-207 (Washington, DC: GPO, 1997),
pp. 64-65.
---------------------------------------------------------------------------
The House passed H.R. 2267 on September 30, 1997, approving
the full $381.8 million without the above Appropriations
Committee limitations but with a new provision (Section 209) to
counter the Bureau's sampling plans.
Section 209 specified that ``Any person aggrieved by the use
of any statistical method in violation of the Constitution or
any provision of law, [in connection with the decennial census
to determine the population for apportionment or redistricting,
might] . . . in a civil action obtain declaratory, injunctive,
and any other appropriate relief against the use of such
method.''
The civil action would be ``heard and determined'' by a
three-judge U.S. district court, and any order issued by the
court would be ``reviewable by appeal directly to the Supreme
Court of the United States.''
A test of the method, such as in the dress rehearsal \23\
for the 2000 census, would be considered equivalent to its use
in connection with the census.
---------------------------------------------------------------------------
\23\ The dress rehearsal is a simulation of the census, conducted
in test sites to see how well the process works and what modifications
are needed. The 2000 census dress rehearsal took place in spring 1998.
U.S. Bureau of the Census, press release, July 8, 1998.
---------------------------------------------------------------------------
An aggrieved person could include ``any resident of a State
whose congressional representation or district could be changed
as a result of the use of a statistical method . . ., any
Representative or Senator in Congress . . ., [and] either House
of Congress.''
During House consideration of H.R. 2267, Representative
Dennis Hastert had spoken in favor of the provision above, and
Representative Alan Mollohan had spoken against it. He urged,
instead, the adoption of the bipartisan Mollohan-Shays
amendment, which contained the same adjustment-related language
as in S. 1022, the Senate version of the FY1998 CJS
appropriations legislation (discussed below). The Mollohan-
Shays amendment would have prohibited the Census Bureau from
making ``irreversible'' plans for sampling in the census to
determine the apportionment population but would have permitted
sampling methods to be tested. To support his position,
Representative Mollohan cited legal arguments and endorsements
of sampling by organizations including the National Research
Council and the American Statistical Association. Hastert
expressed the opinion that sampling and adjustment would be
illegal and unconstitutional. He stated, for example, ``If
Congress had intended that sampling be used for
reapportionment, they would have repealed Section 195 [of Title
13 of the U.S. Code] . . . . They did not.'' \24\ The Mollohan-
Shays amendment was rejected, largely, but not entirely, along
party lines.
---------------------------------------------------------------------------
\24\ House debate on H.R. 2267, Congressional Record, vol. 143,
part 14 (September 30, 1997), p. 20845. The debate spanned pp. 20838-
20866.
---------------------------------------------------------------------------
As reported by the Senate Appropriations Committee on July
16, 1997, and passed by the Senate on July 29, 1997, S. 1022
approved the administration's $354.8 million request for census
2000, with the proviso (Section 209) that the Bureau not make
any ``irreversible'' census sampling plans.\25\
---------------------------------------------------------------------------
\25\ U.S. Congress, Senate Committee on Appropriations, Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriation Bill, 1998, report to accompany S. 1022, 105th Cong., 1st
sess., S. Rept. 105-48 (Washington, DC: GPO, 1997), p. 63.
---------------------------------------------------------------------------
The conference committee recommended $389.9 million for the
2000 census in FY1998. Both Chambers agreed to the conference
report \26\ on November 13, 1997, and President Clinton signed
the legislation on November 26, 1997 (P.L. 105-119). Section
209 of the conference report retained the House's provision for
expedited judicial review of a civil suit brought by ``Any
person aggrieved by the use of any statistical method,''
connected with the decennial census for apportionment or
redistricting.
---------------------------------------------------------------------------
\26\ U.S. Congress, Conference Committee, 1997, Making
Appropriations for the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies for the Fiscal Year Ending September
30, 1998, and for Other Purposes, conference report to accompany H.R.
2267, H. Rept. 105-405, 105th Cong., 1st sess. (Washington, DC: GPO,
1997), pp. 43-46.
---------------------------------------------------------------------------
New language in the conference report stated that the
Speaker of the House might initiate or join in the civil action
on behalf of the House.
New as well in the report was the statement that the Census
Bureau's Report to Congress: The Plan for Census 2000 (which
was required by P.L. 105-18) and the Bureau's operational Plan
for Census 2000 ``shall be deemed to constitute the final
agency action regarding the use of statistical methods in the
2000 decennial census, thus making the question of their use in
such census sufficiently concrete and final to now be
reviewable in a judicial proceeding.''
The conference committee observed that apportionment is
``the sole constitutional purpose of the decennial enumeration
. . .''; that ``article I, section 2, clause 3 of the
Constitution clearly requires an `actual Enumeration' of the
population . . .''; and that ``the use of statistical sampling
or statistical adjustment in conjunction with an actual
enumeration to carry out the census with respect to any segment
of the population poses the risk of an inaccurate, invalid, and
unconstitutional census . . . .''
Two civil suits brought under Section 209 received
expedited judicial review. On January 25, 1999, the Supreme
Court issued its decision in U.S. Department of Commerce v.
U.S. House of Representatives and Clinton v. Glavin \27\ that
Section 195 of Title 13 of the U.S. Code banned incorporating
sample-survey results into the decennial census count for
apportionment. The Court declined to decide whether the use of
sampling prohibited under Section 195 would be unconstitutional
as well.
---------------------------------------------------------------------------
\27\ 525 U.S. 316, 119 S. Ct. 765 (1999).
---------------------------------------------------------------------------
Response to the Court's Decision
In response to the Court's ruling, the Census Bureau
canceled its sampling plans and revised its 2000 census
strategy. The 106th Congress responded to the decision with two
proposals. Representative Carolyn Maloney and Senator Daniel
Patrick Moynihan introduced companion bills H.R. 548 and S. 355
on February 3, 1999. They would have amended Title 13 of the
U.S. Code to strike ``Except for the determination of
population for purposes of apportionment of Representatives in
Congress among the several States,'' from Section 195. Neither
bill advanced beyond the referral stage.
Representative Maloney introduced the same legislation in
the 108th Congress as H.R. 1541 and in the 109th Congress as
H.R. 564, also without success. No similar bills have been
proposed since then.
Census Coverage and the Adjustment Issue Then and Now
Since 1990, the Bureau has shown progress in accurately
counting the U.S. population, including minorities, despite the
increasing size and diversity of the population. The
differential undercount narrowed after 1990.
Census 2000 Accuracy and Coverage Evaluation estimates
indicated a net percentage overcount of 0.49 percent for the
total population, 1.13 percent for non-Hispanic whites, 0.75
percent for non-Hispanic Asians, and 0.88 percent for American
Indians on reservations. The net percentage undercount of non-
Hispanic blacks was 1.84 percent; of native Hawaiians or other
Pacific Islanders, 2.12 percent; of American Indians off
reservations, 0.62 percent; and of Hispanics, 0.71 percent.\28\
---------------------------------------------------------------------------
\28\ U.S. Bureau of the Census, A.C.E. Revision II, Summary of
Estimated Net Coverage, Memorandum Series PP-54, December 31, 2002, p.
3. As previously noted, the presentation of data by race and ethnicity
changed somewhat between the 1990 and 2000 censuses. The revision made
certain categories (for example, blacks in 1990 versus non-Hispanic
blacks in 2000) not perfectly comparable.
---------------------------------------------------------------------------
Census Coverage Measurement results indicated a 2010 census
net percentage overcount of 0.01 percent for the total
population, 0.84 percent for non-Hispanic whites, and 1.95
percent for American Indians off reservations. The net
percentage undercount of non-Hispanic blacks was 2.07 percent;
of non-Hispanic Asians, 0.08 percent; of native Hawaiians or
other Pacific Islanders, 1.34 percent; of American Indians on
reservations, 4.88 percent; and of Hispanics, 1.54 percent.\29\
---------------------------------------------------------------------------
\29\ U.S. Bureau of the Census, ``2010 Census Coverage Measurement
Results,'' news conference background material, May 22, 2012, pp. 11
and 19.
---------------------------------------------------------------------------
Sampling for census adjustment reemerged briefly as an
issue in the 2009 Senate hearings on Gary Locke's nomination to
be Commerce Secretary and that of Robert M. Groves to be Census
Bureau Director.\30\ Each man assured the Senate committee
considering his nomination that the Bureau would not conduct
such an operation in connection with the 2010 census. Dr.
Groves added that he had ``no plans'' to use sampling for 2020
census adjustment, either.\31\ The Bureau likely will conduct a
post-enumeration survey to assess 2020 census coverage, but
without a sample size or design suitable for adjustment. There
the matter stands, in accordance with the Supreme Court's
January 25, 1999 ruling.
---------------------------------------------------------------------------
\30\ Gary Locke served as Commerce Secretary from 2009 to 2011, and
Robert M. Groves was Census Bureau Director from 2009 to 2012. At this
writing, Penny Pritzker is the Secretary of Commerce, and the Bureau is
headed by John H. Thompson.
\31\ U.S. Congress, Senate Committee on Commerce, Science, and
Transportation, ``Senator Hutchison Presses Commerce Nominee Locke to
Ensure a Fair and Open Census Process,'' press release, March 18, 2009;
and U.S. Congress, Senate Committee on Homeland Security and
Governmental Affairs, Nomination of Robert M. Groves to Be Director of
the Census, hearing, 111th Cong, 1st sess., May 15, 2009 (Washington,
DC: 2009).
The Evolution of U.S. Disaster Relief Policy
Bruce R. Lindsay
Analyst in American National Government
and
Francis X. McCarthy
Analyst in Emergency Management Policy
----------
Congress is constantly adapting to change and
redefining its role in response to developing
conditions and circumstances. A prime example of this
phenomenon is Congress' approach to disaster relief
policy from the 1800s to the present. The development
of disaster relief policy by the U.S. Congress has
evolved over many decades, frequently spurred by
different incidents. This evolution resulted in the
broad and arguably more flexible structure of disaster
assistance laws that exists today. There are three
features underlying the development of disaster relief
policy in the United States. First, the development of
a disaster policy framework in the United States has
been greatly influenced by particular disasters.
Second, Congress has demonstrated the capacity to learn
from disasters by initiating new policies. Third, at
the beginning of the 19th century, Congress viewed
response and recovery from incidents as the
responsibility of the State and local charitable
organizations. Beginning in the 1950s, Congress
redefined the Federal role substantially, and today the
Federal Government provides an increasing proportion of
disaster relief to States and localities for
emergencies and major disasters.
Introduction
Congress is constantly adapting to change and redefining
its role in a myriad of policy contexts and environments. New
laws and policies have come about in response to developing
conditions and circumstances. A prime example of this
phenomenon is Congress' approach to disaster relief policy over
the last two centuries.
The development of disaster relief policy by the U.S.
Congress has evolved over many decades, frequently spurred by
different incidents. The executive actions in response to those
incidents, along with congressional enactment of singular laws
addressing specific disasters, eventually resulted in the broad
and arguably more flexible structure of disaster assistance
laws that exists today.
There are three salient features that underlie the
development of disaster relief policy in the United States.
First, the establishment and development of a disaster policy
framework in the United States has been greatly influenced and
characterized by particular disasters--reforms in disaster
policy during periods of quietude and in the absence of
disaster have been rare. Thus, significant changes in disaster
policy in the United States have been episodic in nature rather
than incremental.
Second, Congress has demonstrated the capacity to learn
from disasters by initiating measures to address the
consequences of catastrophic incidents including the problems,
ineptitude, and disorganization associated with the response
and recovery to those events. Some have lamented that the
reforms usually occur after an incident. However, congressional
changes in disaster policy are consistent with several policy
process theories that postulate that reforms are most likely to
occur when a ``focusing event'' causes citizens and
policymakers to pay more attention to an issue or problem and
seek solutions.
Third, the contemporary Congress' stance on providing
disaster relief is strikingly different from its predecessors'.
Over the last two centuries Congress has dramatically redefined
its role with respect to providing disaster relief to States
and localities. At the beginning of the 19th century, Congress
viewed the Federal role in disaster relief as limited at best--
response and recovery from disastrous incidents was the
responsibility of State and local charitable organizations. By
the 1950s, Congress had redefined the Federal role
substantially, increasing the Federal proportion of disaster
relief to States and localities for emergencies and major
disasters.
Early Period: 1803-1948
Prior to 1948, there was no overarching legislative or
policy framework in the United States governing the
distribution of aid or assistance after a disaster had
occurred. Instead, Congress responded to each individual
incident by providing assistance to States and localities on an
ad hoc and incident-by-incident basis. For example, between
1803--the 1st year Congress provided any kind of disaster
relief--and 1947, Congress passed 128 disaster-specific bills
to provide relief to States and localities.\1\ In many other
cases, however, the Federal Government did not provide
assistance.\2\ The Federal Government's refusal to provide
relief and the ad hoc approach used by Congress prior to 1948
reflects the dominant thinking at the time concerning the
Federal Government's role in providing disaster relief.
Congress often did not see a role for the Federal Government in
supplementing or supporting States and localities after a
disaster. Rather, Congress viewed disaster relief as the
responsibility of States or, more often, local governments,
communities, neighbors, and charities.\3\
---------------------------------------------------------------------------
\1\ David Butler, ``Focusing Events in the Early Twentieth Century:
A Hurricane, Two Earthquakes, and A Pandemic,'' ed. Claire B. Rubin
(Fairfax, VA: Public Entity Risk Institute, 2007), p. 11. One example
of Federal assistance is P.L. 59-16, which authorized the Secretary of
War to purchase and distribute supplies to destitute people after the
San Francisco earthquake and fire.
\2\ For example, Federal assistance was not provided after the
Johnstown, Pennsylvania, flood that killed 2,209 people on May 31,
1889.
\3\ Rutherford H. Platt, Disasters and Democracy: The Politics of
Extreme Natural Events (Washington, DC: Island Press, 1999), p. 2.
---------------------------------------------------------------------------
Between 1927 and 1948 the limited role of the Federal
Government in disaster recovery slowly evolved, as a growing
body of knowledge of disasters, as well as the needs of
communities and disaster victims, began to emerge as States and
localities recovered from a series of disasters. Policymakers
also began to notice that large-scale disasters, in particular,
often had regional and national economic implications.\4\
---------------------------------------------------------------------------
\4\ Jonas Elmerraji, ``Financial Effects Of Natural Disasters,''
Forbes, March 15, 2011, at http://www.forbes.com/sites/
greatspeculations/2011/03/15/financial-effects-of-natural-disasters/.
---------------------------------------------------------------------------
In 1948 Congress deviated from the custom of passing
individual laws for disaster relief by passing the first
ordered and continued means of Federal disaster assistance. The
1948 legislation entitled the Second Deficiency Appropriation
Bill, 1948, enabled:
. . . the President, through such agency or agencies as he
may designate, and in such manner as he shall determine, to
supplement the efforts and available resources of State and
local governments or other agencies, whenever he finds that any
flood, fire, hurricane, earthquake, or other catastrophe in any
part of the United States is of sufficient severity and
magnitude to warrant emergency assistance by the Federal
Government in alleviating hardship, or suffering caused
thereby, and if the governor of any State in which such
catastrophe shall occur shall certify that such assistance is
required, $500,000, to remain available until June 30, 1949 . .
.\5\
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\5\ P.L. 80-785, 62 Stat. 1031.
According to the report accompanying the bill, the funds
were appropriated to relieve distress caused by a flood in the
Columbia River Valley. The legislative text of the bill,
however, included a provision that permitted the funds to be
used for ``similar incidents occurring elsewhere.'' \6\ Still,
Congress retained its position with regard to the Federal
Government's role in disasters. The report emphasized that,
while sympathetic to pleas from States for Federal disaster
assistance, recovery from disasters was primarily a local
responsibility and that State and local resources should be
used to ``whatever extent available before the federal
government is expected to step in and render assistance.'' \7\
Accordingly, the bill provided funds for immediate and
temporary needs and explicitly prohibited the use of the funds
for permanent construction.
---------------------------------------------------------------------------
\6\ U.S. Congress, House Appropriations, Second Deficiency
Appropriation Bill, 1948, To Accompany H.R. 6935, 80th Cong., 2d sess.,
June 15, 1948, 2348, p. 2.
\7\ Ibid., p. 2.
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Permanent Federal Disaster Relief Authority: 1950 to 1960
The Federal Disaster Relief Act of 1950 (P.L. 81-875) marks
the beginning of a half-century of Federal laws, policies, and
programs intended to reduce human suffering as well as soften
the financial impacts of natural disasters on the American
people and their communities.\8\ Interestingly, the Federal
Disaster Relief Act of 1950 was not in response to a particular
disaster. After World War II, concern over the possible use of
atomic weapons and growing hostility between the United States
and the Soviet Union gave rise to the cold war. As a
consequence, disaster management in the United States was
conceptualized and organized around two themes: (1) the threat
of a nuclear war and (2) natural disasters. This duality was a
foreshadowing of the split between homeland security and
disaster recovery programs during the early years of this
century.
---------------------------------------------------------------------------
\8\ Rutherford H. Platt, Disasters and Democracy: The Politics of
Extreme Natural Events (Washington, DC: Island Press, 1999), p. 10.
---------------------------------------------------------------------------
Several landmark Federal disaster laws and policies
originate from attempts by lawmakers during this era to prepare
the civilian population for a potential atomic attack and
provide aid after a natural disaster. The most influential of
these laws were the Civil Defense Act of 1950 (P.L. 81-920, 64
Stat. 1245) and, in particular, the Federal Disaster Relief Act
of 1950. These laws established a framework of Federal-to-State
assistance to fund disaster and emergency activities.
The systemization of Federal disaster relief has its roots
in the Federal Disaster Relief Act. The Federal Disaster Relief
Act of 1950 established much of the framework through which
disaster policy is carried out in the United States. The report
accompanying the underlying bill of the act stated that the:
purpose of the bill is to provide for an orderly and continuing
method of rendering assistance to the states and local
governments in alleviating suffering and damage resulting from
a major peace time disaster and in restoring public facilities
and in supplementing whatever aid the state or local
governments can render themselves. Also it authorizes the
President to coordinate the activities of all federal agencies
in such an emergency. In the past, appropriations to the
President have been made for relief from floods and snowstorms
in particular areas without authorization, hence this bill is
not novel legislation. The bill provides the framework for the
federal government under which prompt action can be taken in
meeting the needs of stricken areas, and it will establish a
general government policy in respect to emergency relief in all
future disasters, instead of meeting the problem after it
occurs.\9\
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\9\ U.S. Congress, House Committee on Public Works, Authorizing
Federal Assistance to States and Local Governments in Major Disasters,
committee print, 81st Cong., 2d sess., No. 2727, p. 2.
The act put in place the standard process in which the
Governors could ask the President for Federal disaster
assistance for their respective States and provided an orderly,
ongoing, and continuing means of Federal assistance to States
and localities to alleviate suffering and damage that resulted
from major disasters. Prior to the act, congressional action
after each individual incident was needed to provide Federal
aid. Once in place, the law authorized the President to make
the decision to provide aid without the specific consent of
Congress. This helped hasten aid to States and localities
because Congress did not have to debate and vote on assistance
after each incident.
Congress believed, however, that the Federal Government
should not fund permanent projects after disasters unless there
was a direct threat to lives and personal property. The same
report stated that the:
committee believes that restoration of local government
facilities during a period in which there is no direct threat
to lives and property is a responsibility of the local
authorities.\10\
---------------------------------------------------------------------------
\10\ Ibid., p. 2.
---------------------------------------------------------------------------
1960s-1970s: Modern Disaster Relief Management
Once a framework of Federal-to-State disaster assistance
had been constructed with the passage of the 1950 statute, the
process of administering disaster relief was greatly influenced
by a series of large incidents in the 1960s and early 1970s.
The actual administration of the authority had been in the
Executive Office under President Truman and President
Eisenhower, who had melded together both civil defense and
disaster relief functions.\11\ In 1962, President Kennedy sent
the civil defense function to the Department of Defense and
focused disaster coordination responsibilities in the Office of
Emergency Planning (OEP) within the Executive Office of the
President.\12\
---------------------------------------------------------------------------
\11\ President Dwight D. Eisenhower, ``Message of the President,
Reorganization Plan No. 1 of 1958,'' U.S. Code Home, at http://
law.justia.com/codres/us/titles5a/5a_4_62_2.html.
\12\ Executive Order 11051, ``Prescribing Responsibilities of the
Office of Emergency Planning in the Executive Office of the
President,'' 27 Federal Register 9683, October 2, 1962.
---------------------------------------------------------------------------
The disasters of the 1960s and early 1970s are often cited
as the animating events that moved Congress toward enhancing
and expanding disaster relief legislation. They include the
Alaska earthquake of 1964; Hurricane Betsy's impact on New
Orleans in 1965; the devastation caused by the Rapid City,
South Dakota, flood of 1972; and the multistate damage
triggered by Hurricane Agnes in 1972. These incidents received
significant national attention and taken together contributed
to an understanding of the vulnerability of States and
communities, as well as the types of assistance that could be
established in statute to effectuate a swifter and more
comprehensive response.
The first example is the Alaska earthquake in March 1964;
an event that originally registered 9.2 on the Richter scale,
with multiple aftershocks over 6.0.\13\ The devastation from
the earthquake resulted in an Executive order \14\ by President
Johnson that established the framework for Federal coordination
of the response and recovery mission that, it can be argued,
became the outline for disaster legislation that would follow
in the ensuing decade. As one observer explained in a
monograph:
---------------------------------------------------------------------------
\13\ ``The Great Alaska Earthquake of 1964,'' AEIC Alaska
Earthquake Information Center, November 2002, at http://
www.aeic.alaska.edu/quakes/Alaska_1964_earthquake.html.
\14\ Executive Order 11150, ``Establishing the Federal
Reconstruction and Development Planning Commission for Alaska,'' 4789
Federal Register 4789, April 2, 1964.
Forty years ago, President Lyndon B. Johnson showed how the
federal government could both respond rapidly and rationally to
a major natural disaster and, critically, draw up sensible
legislation based on expert analyses to get the affected area
back on its feet.\15\
---------------------------------------------------------------------------
\15\ Kevin R. Kosar ``Rebuilding Hurricane-Devastated Areas--Why
Not Follow LBJ's Lead?'' George Mason History News Network, January 25,
2006, at http://hnn.us/article/16383.
When Hurricane Betsy struck New Orleans the following year,
President Johnson again demonstrated the executive response
that would become a hallmark of major national disasters. After
observing media coverage of the storm's power on the three
major networks of the day, and conferring with members of the
Louisiana congressional delegation, Johnson headed down to
---------------------------------------------------------------------------
visit the impacted area.
Approaching New Orleans, the 707 made a low pass over the
city. On board, the delegation included Senator [Russell] Long
and Representative Hale Boggs, who described the damage over
the aircraft's public address system. After landing, with a 25
m.p.h. wind still blowing and no power for the loudspeakers
that had been set up, Johnson was forced to shout his arrival
statement. His words nonetheless bordered on the poetic: ``I am
here because I wanted to see with my own eyes what the unhappy
alliance of wind and water have done to this land and its
people.'' \16\
---------------------------------------------------------------------------
\16\ Brian Williams, ``LBJ's Political Hurricane,'' New York Times,
September 24, 2005, at http://www.nytimes.com/2005/09/24/opinion/
24williams.html?_r=0.
But in addition to his political instincts, Johnson also
demonstrated his belief in the use of assertive Federal
Government action and resources. While such an approach would
be a formula for conflicts in other domestic policy areas, the
realm of disaster response has long been an area of, if not
comity, at least general agreement of a shared responsibility.
It was also during this timeframe that the Senate
Environment and Public Works Committee gained jurisdiction of
the disaster relief portfolio. The committee was a busy area of
activity during this period that would culminate not only with
comprehensive disaster relief legislation but also the Clean
Air Act.\17\
---------------------------------------------------------------------------
\17\ U.S. Senate Committee on Environment and Public Works,
``History and Recent Membership of the Committee on Environment and
Public Works,'' at http://www.epw.senate.gov/comresources/
histmembership.htm.
---------------------------------------------------------------------------
The response to Hurricane Betsy again initiated assistance
from across the Federal Government. The post-Betsy activities,
coupled with the Alaska earthquake paradigm, captured the
interest and imagination of Congress. With the Disaster Relief
Act of 1966 (P.L. 89-796), Congress:
made the most significant changes in policy in sixteen years.
The statute authorized federal agencies to provide loans at
below-market rates for as long as forty years, extended aid to
unincorporated communities in rural areas, and created a new
category of eligibility for public colleges and universities
damaged by disasters. In addition, the 89th Congress took steps
to improve administrative issues associated with federal
disaster relief by linking civil defense warning systems with
threats from natural disasters (a forerunner of the ``dual
use'' or ``all hazards'' concepts developed later) and
authorizing the president to coordinate federal assistance
efforts.\18\
---------------------------------------------------------------------------
\18\ Keith Bea, in Claire B. Rubin, Editor, Emergency Management:
The American Experience 1900-2010 (CRC Press: Boca Raton, 2012).
Within the same context of large disaster events, 2 years
later Congress enacted the National Flood Insurance Program
(NFIP). Through P.L. 90-448, the flood insurance program has
been both an important companion piece to disaster relief
legislation and also, fundamentally, the beginning of Congress'
interest in supporting mitigation measures to lessen the impact
of disaster events. While the NFIP is an insurance program, it
is also a mitigation program that encourages local actions to
prevent future loss of life and property. Based on the work of
two separate task forces \19\ that provided recommendations
regarding the recurring threat of flood damage:
---------------------------------------------------------------------------
\19\ Robert E. Hinshaw, Living with Nature's Extremes: The Life of
Gilbert Fowler White (Johnson Books: Boulder, 2006), p. 149.
Congress attended to the recommendations that (1)
communities be required to follow all floodplain management
guidelines established by the FIA before being allowed to
enroll in the insurance program and (2) that the cost of
insuring any new construction in floodplains be actuarially
based on the losses predicted for the new structure's locations
and elevation.\20\
---------------------------------------------------------------------------
\20\ Ibid., p. 155.
The two pieces of legislation passed in the late 1960s were
the pretext for the two seminal pieces that would follow in
1970: the Disaster Relief Act of 1969 (P.L. 91-79) and the
Disaster Relief Act of 1974 (P.L. 93-288), which became the
core authorizing legislation for disaster response and
recovery.\21\ P.L. 93-288 was enacted in the context of great
disasters, such as Hurricane Agnes, that struck much of the
east coast and posed significant problems that could not be
addressed through existing authorities. Much of the legislation
of the period in this area was enacted with bipartisan support.
For example, legislation to liberalize forgiveness of SBA
disaster loans and related disaster improvements passed the
Senate on a vote of 76 to 2 and passed the House by a vote of
359 to 1.\22\ Some of the tenor of the time was expressed by
Senator George McGovern following the Rapid City flood in his
home State of South Dakota. Through his contacts with his
constituents, the Senator noted that their commentary:
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\21\ The Major Disaster Relief and Emergency Assistance Amendments
of 1987 renamed the Disaster Relief Act of 1974 as the Robert T.
Stafford Disaster Relief and Emergency Assistance Act. With the
creation of DHS, that responsibility was moved to the Senate Committee
on Homeland Security and Governmental Affairs.
The Stafford Act constitutes the statutory authority for most
Federal disaster response and recovery activities especially as they
pertain to FEMA and FEMA programs.
\22\ ``Liberalized Disaster Relief Loans Approved by Congress,'' CQ
Almanac 1972, 28th ed. (Washington, DC: Congressional Quarterly 1973),
at http://library/cqpress.com/cqalmanac/cqal72-1250657.
reveals frustration about buck-passing, about indifference, and
it reveals a fear by many people that so very much has been
lost that it will take 10 years, if not more, before the
community gets back to normal. . . . The tools we have provided
for disaster relief are woefully, tearfully, shamefully
inadequate. We can afford to do better.\23\
---------------------------------------------------------------------------
\23\ Ibid.
This was also a period when the authority to coordinate the
administration of disaster relief programs had changed under
Reorganization Plan No. 2 of 1973. The plan transferred the OEP
from the White House to the Federal Disaster Assistance
Administration (FDAA), which, like the Flood Insurance program,
was then a part of the Department of Housing and Urban
Development (HUD).\24\ The placement at HUD emphasized not only
the provision of temporary emergency housing assistance but
also suggested an interest in overall recovery for communities
hit by disasters and authorities necessary to achieve those
goals.
---------------------------------------------------------------------------
\24\ General Records of the Department of Housing and Urban
Development (Record Group 207), 1931-1987, at http://www.archives.gov/
research/guide-fed-records-groups/207html.#207.7.9.
---------------------------------------------------------------------------
This also reflected a period of legislative activism to
which disaster relief was not immune. As one observer noted:
even under a conservative president in Nixon, the federal
disaster relief program expanded both in federal resources and
funding consistently during this period. Both Hurricane Camille
(1969), and Hurricane Agnes (1972), served as significant
catalysts for this, but also, the liberal political context of
this period coming just after the implementation of the Great
Society program by Lyndon Johnson, and Nixon's own ambitions to
be seen as a proactive leader despite the ideological
contentions it spawned throughout his presidency, played into
the expansion of the federal disaster relief program as
well.\25\
---------------------------------------------------------------------------
\25\ Daniel Nault, ``The Nixon Years: Examining the Evolution of
Federal Disaster Relief Policy, 1969-1974'' (Union College, 2013), at
http://hdl.handle.net/11024/23889.
The 10-year period from 1964 to 1974 was a busy period for
natural disaster incidents and Congress. During this timespan
Congress appropriated significant amounts of funding and held
hearings that contributed to an understanding of the form of
legislation that could improve disaster relief activities. In
that same period the executive branch was also challenged by
the breadth and intensity of large disaster events. The
imagination and elan that the Federal departments and agencies
brought to this work also helped to inform the shape of the
resulting legislation.
During that period of time Congress passed multiple laws
that constructed the disaster response and recovery framework
that still exists today. In the ensuing 40 years there have
been several important pieces of legislation that codified
practices, expanded authorities, and improved accountability
for the operations of disaster relief. But all of this work was
building on the designs that were imprinted in the late 1960s
and early 1970s when Congress determined that the response to
disasters need not be episodic or transitory. Instead, Congress
established the mechanisms, programs, and institutions that
continue to supplement State and local governments, as well as
the citizens in those communities who are challenged by
disasters and their aftermath.
The Federal Emergency Management Agency
Another important development in this period was the birth
of the Federal Emergency Management Agency (FEMA). Prior to
FEMA, civil emergency management programs and activities were
scattered among five principal Federal departments and
agencies. Adopting proposals set forth by the National
Governors Association (NGA), President Carter submitted
Reorganization Plan No. 3 of 1978 to Congress for its approval.
The NGA was especially interested in the creation of a focal
point for Federal supplemental assistance. In the
reorganization, the Federal Insurance Administrator
(responsible for the National Flood Insurance Program), the
National Fire Protection and Control Administration, the
Federal Preparedness Agency of the General Services
Administration, and HUD's Federal Disaster Assistance
Administration were all absorbed into FEMA. The Department of
Defense Civil Preparedness Agency and its civil
responsibilities were also transferred to FEMA.\26\
---------------------------------------------------------------------------
\26\ Richard Sylves, Disaster Policy and Politics: Emergency
Management and Homeland Security (Washington, DC: CQ Press, 2008), p.
56.
---------------------------------------------------------------------------
1988-2013: Quarter-Century of Stafford Revision and the Birth of
Homeland Security
The establishment of FEMA marked the beginning of a
quiescent period in natural disaster policy activity. The years
during President Reagan's administration were uneventful for
natural disasters and, due to that dormant period and the
Reagan administration's priorities, more emphasis and resources
were placed, within FEMA, on nuclear war planning.
However, during the decade of the 1980s there was one piece
of significant disaster relief legislation, the Robert T.
Stafford Disaster Relief and Emergency Assistance Act of 1988
(P.L. 100-707, 102 Stat. 4689, the Stafford Act),\27\ that
codified some existing practices, such as the 75 percent
Federal share for disaster programs, infrastructure repair, and
the 18-month limit for temporary housing assistance.
---------------------------------------------------------------------------
\27\ Vermont Senator Robert T. Stafford chaired the Senate
Committee on Environment and Public Works (EPW) from 1981 to 1987. As a
tribute to him, P.L. 100-707 named the amended P.L. 93-288 in his
honor. At the time, the EPW was the Senate authorizing committee for
disaster relief legislation.
---------------------------------------------------------------------------
The law also included important disaster concepts that
remain a part of the suite of programs currently deployed in
response to many disasters. Foremost among the provisions was
Section 404.\28\ Other disaster programs added by the statute
included the Disaster Unemployment Assistance (DUA) Program and
an expansion of the Crisis Counseling Program. The Stafford Act
also included authorization of the small project grants that
could be funded based on cost estimates, a forerunner of an
approach that would be explored in ensuing disaster legislation
for larger projects.
---------------------------------------------------------------------------
\28\ 42 U.S.C. 5170c. When enacted in P.L. 100-707 the cost share
was 50 percent Federal and 50 percent State and local. This was amended
during the Mississippi floods of 1993 to 75 percent Federal and 25
percent State and local.
---------------------------------------------------------------------------
As previously noted, disaster relief policy has been marked
by bipartisan accord both in substance and legislative process.
The Stafford Act is striking in that regard since its chief
sponsor was a House Member of the then-minority party--
Representative Tom Ridge of Pennsylvania. Mr. Ridge would go on
to be a two-term Governor of Pennsylvania and the first
Secretary of the Department of Homeland Security, which now
includes FEMA.
While there was some criticism of FEMA's performance in
response to Hurricane Hugo in 1989 and Hurricane Andrew in 1992
in particular, the general perception of FEMA, both among
Members of Congress and the public, changed during the Clinton
administration. FEMA Director James Lee Witt was considered
successful in reshaping the agency through an emphasis on a
more timely response and improved partnership with the States.
That assessment was held on both sides of the aisle in
Congress: ``I haven't spent a lot of time complimenting the
President on his appointments, but I sure did on this one,''
said Senator James Inhofe, an Oklahoma Republican.\29\
---------------------------------------------------------------------------
\29\ Robert Block and Christopher Cooper, Disasters: Hurricane
Katrina and the Failure of Homeland Security (New York: Henry Holt,
2006), p. 60.
---------------------------------------------------------------------------
FEMA's enhanced relationship with Congress was a result of
its improved administration of the disaster response and
recovery program. This change was expressed in the form of the
Disaster Mitigation Act of 2000 (P.L. 106-390, 114 Stat. 1552,
DMA2K). In line with FEMA's suggested direction, the law
created incentives to lessening disaster risks:
Witt urged the agency's officials to focus more on
preventing the damage from disasters, through an
intergovernmental and public-private effort. FEMA developed a
``life-cycle'' model of disaster management. Disasters--and
their costs--were the product of planning and mitigation that
needed to begin far in advance of disasters and continue long
after to prevent their recurrence.\30\
---------------------------------------------------------------------------
\30\ Ibid., p. 62.
Included in the legislation was a predisaster mitigation
program that made funding available prior to, and not
contingent on, a disaster event (now Section 203 of the
Stafford Act). In addition, the law raised the amount of
mitigation funds available in the Hazard Mitigation Grant
Program (HMGP) for those States with improved mitigation plans.
The act also established a cost-estimating formula for large
infrastructure repair or restoration projects that would permit
FEMA to pay costs based on estimates rather than through the
reimbursable process already in place.
Interestingly some parts of DMA2K would be revisited in
later legislation. For example, in order to meet ``pay-go''
provisions then in place,\31\ the act capped FEMA home repair
assistance at $5,000 per household to offset increases in
mitigation expenditures.\32\ While this limit reduced disaster
assistance expenditures, the destructive impact of Hurricane
Katrina demonstrated that the cap was a detriment to rapid
repairs to make homes habitable, especially for those
homeowners who had difficulty qualifying for loans to finish
their repairs. The scope of devastation across five States
impacted by Hurricane Katrina and the government's anemic
response prompted Congress to taken action by enacting in the
Post-Katrina Emergency Management Reform Act (P.L. 109-295, 120
Stat. 1355, PKEMRA).
---------------------------------------------------------------------------
\31\ For information on pay-go during this period, see CRS Report
R41901, Statutory Budget Controls in Effect Between 1985 and 2002, by
Megan Suzanne Lynch.
\32\ P.L. 106-390, Section 408(c)(2)(C), 114 Stat. 1568.
---------------------------------------------------------------------------
The response to Hurricane Katrina was the first great
challenge to FEMA since it became a part of the Department of
Homeland Security in 2003.\33\ In fact, FEMA's role within DHS
had been a matter of some debate. While some, such as the Hart-
Rudman Commission,\34\ thought FEMA was a natural fit within
DHS, others were concerned that FEMA would lose its identity
within the large, new institution. Certainly other parts of DHS
(e.g., Secret Service and the Coast Guard) were subject to
similar concerns of identity and function. FEMA, however, had a
unique relationship with State and local governments that made
the transition more of an open question. The post-Katrina
reviews focused on this question. Just as FEMA was previously
torn between civil defense and disaster relief, now the point
of tension was between DHS' antiterrorism mission and FEMA's
disaster response and recovery responsibilities. Some of the
difficulties resulted from DHS' decision to take the lead on
preparedness grants. This meant that, at the time of Katrina,
FEMA was no longer directly involved in State preparedness
efforts. As the Senate report on Hurricane Katrina explained:
---------------------------------------------------------------------------
\33\ The Department of Homeland Security was established by P.L.
107-296, the Homeland Security Act of 2002.
\34\ U.S. Commission on National Security/21st Century, named after
its chairs, former Senators Gary Hart and Warren Rudman. The commission
recommended a new National Homeland Security Agency with FEMA as the
key building block; Road Map for National Security: Imperative for
Change, Phase III Report, p.15.
FEMA was no longer able to influence activities tied to
funding the states, including training, planning and
exercising, or providing evaluation of such activities. This
limitation of FEMA's role has hindered FEMA's relationship with
the states. DHS's decision to separate preparedness from
response was a mistake that hampered the alignment between the
way preparedness is designed and the way response should
operate.\35\
---------------------------------------------------------------------------
\35\ Hurricane Katrina: A Nation Still Unprepared, Special Report
of the Committee on Homeland Security and Governmental Affairs, U.S.
Government Printing Office, Washington, DC: 2006, p. 222.
Among the many important changes made by PKEMRA was the
transfer of preparedness grants back to FEMA to help the agency
reestablish its relationships with the States. PKEMRA also
clarified operational field authority and lifted the $5,000 cap
for future disasters.\36\ In addition, the act reflected many
of the hearings and fact-finding trips conducted by
congressional committees after the Gulf storms.
---------------------------------------------------------------------------
\36\ P.L. 109-295, 120 Stat. 1448, amended Section 408(c) of the
Stafford Act.
---------------------------------------------------------------------------
The multiple titles within PKEMRA addressed issues that had
been raised during the troubled response to Katrina, including
personnel challenges, procurement questions, delineation of
FEMA's authority within DHS, people with disabilities, and many
other topics that had arisen during the recovery. One example
of the law's breadth and responsiveness to particular disaster
situations was the establishment of case management services as
an eligible State expense.
The trend of legislation prompted by large events has
continued, most recently with the passage of the Hurricane
Sandy Recovery and Improvement Act (P.L. 113-2, SRIA). While
the actual provisions regarding disaster policy again reflected
bipartisan agreement, the pace and size of additional funding
for the Sandy recovery was not without partisan debate.
The law encompassed many parts of the recovery cycle. It
encouraged incentives and pilot projects to speed up debris
removal; included child care, for the first time, as an
eligible expense under FEMA's Individual and Households (IHP)
Program; and, perhaps most significantly, established in law
the ability of Native American tribes to request help directly
from the President rather than through State governments.\37\
---------------------------------------------------------------------------
\37\ For a detailed discussion of many of the provisions of P.L.
113-2, see CRS Report R42991, Analysis of the Sandy Recovery
Improvement Act of 2013, by Jared T. Brown, Edward C. Liu, and Francis
X. McCarthy.
---------------------------------------------------------------------------
SRIA returned to the notion of alternative procedures for
public assistance,\38\ including the use of estimates that had
originally been provided to FEMA a dozen years earlier in
DMA2K. This repeated underlining of such authority emphasized
Congress' interest in streamlining the repairs to public
infrastructure and its expectation that FEMA would implement
such authorities.
---------------------------------------------------------------------------
\38\ Public assistance (PA) provides government-to-government
(Federal-to-State or local) disaster relief to subsidize much of the
cost of repairing, rebuilding, or replacing damaged government or
utility infrastructure.
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Concluding Observations
Congress is not a static institution; rather it is a
dynamic lawmaking body that changes with each election cycle
but also in response to other pressures and influences.\39\
Disaster relief policy, in particular, demonstrates that
Congress is an institution in which the mechanics of
legislating reflect the responsiveness, openness, and
pragmatism that is characteristic of American policymaking. The
substantial overhaul of disaster relief reforms that took place
over the last half century was, in large part, a reaction to
certain disasters--yet it is an indication of how Congress
becomes aware of problems and seeks solutions.
---------------------------------------------------------------------------
\39\ Walter J. Oleszek, Congressional Procedures and the Policy
Process, 3d ed. (Washington, DC: CQ Press, 1989), p. 283.
---------------------------------------------------------------------------
It is also a reflection of the bipartisan nature of
disaster relief policy. Current debates about disaster relief
focus on actions, efficiency, the number of disaster
declarations issued, and the size of subsequent Federal
expenditures for disaster assistance. Congress does not often
debate whether Federal assistance should be provided.
Additionally, the impetus for disaster relief legislation
inevitably leads back to the actual disaster events themselves.
As disasters unfold in the future, Congress will likely
continue to build on the existing framework established in the
1950s and apply the lessons learned to refine existing programs
and create new ones.
Congress' Role in the Evolution of Federal Block Grants as a Policy
Instrument: From Community Development to Homeland Security
Eugene Boyd
Analyst in Federalism and Economic Development Policy
and
Natalie Keegan
Analyst in Federalism and Emergency Management Policy
----------
Congressional passage of block grant legislation has
met with both success and failure. Using the CDBG
Program and proposals that would block grant State and
local preparedness grants as case studies, the report
identifies key elements that contribute to the
successful enactment of block grant legislation and
obstacles that may derail or delay passage. Successful
enactment of block grant legislation ideally requires
political urgency, congressional consensus, bipartisan
collaboration, and executive branch and interest group
support. Significant opposition from any of these
entities, or factions therein, particularly the
legislative branch, may delay or jeopardize passage of
legislation. In addition, any block grant proposal
faces double jeopardy in the absence of congressional
leadership support or by way of a potential
Presidential veto. Any successful block grant proposal
considered by Congress must overcome concerns about
grant transition and structure as well as the politics
of the block grant label.
Introduction
Since 1966, with passage of the Comprehensive Health
Services Act (P.L. 89-749) creating the Nation's first block
grant, the Partnership in Health Program, Congress has used the
block grant concept to provide assistance to State and local
governments across a number of domestic policy areas (e.g.,
community development, income security, social services,
education, transportation, juvenile justice, and job training).
However, Congress' embrace of block grants as a policy
implementation instrument has not been without controversies,
contradictions, conflicts, or challenges. Block grants have
been heralded by congressional supporters and others as a means
of improving delivery of services through the consolidation of
categorical programs and of effectuating the devolution of
policy implementation authority to States and local
governments. The block grant concept has also been denounced by
detractors as facilitating a reduced Federal role as reflected
in less prescriptive regulations, greater grantee discretion,
and lower Federal funding amounts. In addition, critics of
block grants question their ability to target assistance to
areas of greatest need and their utility as an instrument of
national policy, and they contend that these programs are
difficult to evaluate.
This report presents two case studies exploring Congress'
role in the development, enactment, and continued support of
the Community Development Block Grant (CDBG) Program, which has
been in existence for 40 years; and in the proposed, but not
yet enacted, block granting/consolidation of the Department of
Homeland Security (DHS) State and local preparedness grants.
The proposed block granting of the DHS preparedness grants is
one of the most recent block grant initiatives to be considered
by Congress. This comparison is used to illustrate how Congress
as an institution has responded to block grant proposals and
how that response has evolved over time.
Block Grants Defined
In the Federal grant-in-aid universe, block grants lie
somewhere between highly targeted and prescriptive categorical
project grants--which are often, but not exclusively, awarded
on a competitive basis--and the highly flexible, formula
allocated, no-strings-attached general revenue sharing model.
Block grants are distinguished from other Federal grant
assistance by the following functional, structural, and
managerial elements:
Grants may be used to undertake a wide range of eligible
activities within a broadly defined functional area (i.e.,
community development, social services).
Grant recipients have discretion in the allocation of
resources to address local problems in line with national
objectives.
Federal administrative requirements and oversight are kept
to a minimum to promote maximum flexibility in the use of funds
while intending to ensure that national objectives are met.
Funds are generally awarded by formula (although some block
grants allow Federal agencies to allocate a small percentage of
the program's funds).
Eligible grantees are typically States or local governments.
Like general revenue sharing, block grants are designed to
promote recipient discretion and flexibility in the mix of
activities that may be funded. However, block grants, unlike
general revenue sharing, require that funded activities address
national objectives while meeting local needs and Federal
requirements.
Rationale Supporting Block Grants and Counterarguments
Block grant advocates argue that block grants improve
program performance by reducing administrative fragmentation
associated with multiple categorical grants operating within a
related policy area and by devolving programmatic authority to
State and local government officials who, in their view, are
better able than Federal officials to discern the most
efficient and effective means to serve their State and their
local communities. They argue that block grants:
provide communities with greater certainty about the level
of Federal funding they should expect,
distribute Federal funds to States or local governments
based on a formula intended to measure relative need,
encourage local decisionmaking and priority setting by
allowing communities or State recipients broad discretion in
choosing activities and projects funded under the program while
minimizing Federal intrusion, and
allow local officials to develop comprehensive long-term
plans in line with national objectives.
Opponents argue that block grants:
contain vague or unmeasurable goals;
lack the specificity of single-purpose categorical grants;
lead to possible funding reductions, particularly during
times of budgetary constraint; and
redistribute decisionmaking authority to State or local
institutions.
A 2004 assessment of block grants made the following
observations:
Initial funding of block grants has not been consistently
higher or lower than the programs they replaced. However,
funding tends to decline over time.
Block grants may be subject to creeping categorization if
Congress enacts legislation with narrowly targeted programs
with the same objective as a categorical grant or sets aside
some portion of block grant for particular purposes.
Implementation of new block grants has been smoothest when
and where States were responsible for administering the
programs they replaced.\1\
---------------------------------------------------------------------------
\1\ Kenneth Finegold, Laura Wherry, and Stephanie Schardin, Block
Grants: Historical Overview and Lessons Learned, Urban Institute, April
2004, pp. 4-5.
---------------------------------------------------------------------------
Scholars contend that the decentralized nature of
congressional decisionmaking and electoral politics also play a
role in determining whether Congress decides to use categorical
or block grants. The U.S. Advisory Commission on
Intergovernmental Relations noted that ``the fragmentation of
responsibility in Congress inclines it toward the creation of a
large number of specialized [categorical] grants, which may
provide duplicative or even conflicting services.'' \2\ Another
scholar has noted that Members of Congress have three primary
objectives: achieving power, making ``good'' public policy, and
getting reelected.\3\ He argued that Congress tends to favor
categorical grants over block grants because categorical grants
provide more opportunities for Members of Congress to claim
electoral credit for authoring or supporting specific programs.
---------------------------------------------------------------------------
\2\ U.S. Advisory Commission on Intergovernmental Relations,
Categorical Grants: Their Role and Design, A-52 (Washington, DC: GPO,
1978), pp. 55, 63-64.
\3\ David Mayhew, Congress: The Electoral Connection (New Haven:
Yale University Press, 1974).
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Block grants minimize the role of a Member of Congress in
claiming ``particularized benefits'' in securing funds for a
congressional district. These benefits have two properties:
They are usually awarded to a specific individual group or
geographic constituency, and they are usually distributed in a
fashion so that the Member of Congress representing the
benefited constituency can claim credit for the allocation.
Congressional earmarks (or, more euphemistically,
``congressionally directed spending'') and project-based,
categorical grants are classic examples. Formula-based block
grants minimize the ability of an individual Member to claim
credit for securing funds since funds are to be allocated by
formula. Block grants also minimize the role of the
administering Federal agency in the awarding of grant funds.
The formula-based nature of a block grant typically results in
a reduced role in the allocation of funds for the administering
Federal agency and a heightened role for local officials in the
distribution of funds.
Fear of the unknown is yet another reason for Members to
favor categorical grants over block grants, particularly when
block grants are used to facilitate the consolidation of
activities funded under several categorical grant programs and
do not include a hold harmless provision. Hold harmless
provisions typically provide transition funding to assist State
and local governments as the new program is implemented. Many
of these issues and concerns came into play as Congress debated
the enactment of the CDBG Program and, more recently, the
creation of a homeland security preparedness block grant.
The Tale of Two Block Grants
Congress' bicameral structure makes coalition building,
collaboration, cooperation, and compromise important elements
for the enactment of legislation. Proposals that lack political
urgency, consensus, or the backing of committee chairmen or
House or Senate leadership have little opportunity to move
through the legislative process. Moreover, any proposal that
successfully maneuvers through the legislative process faces
the possibility of a Presidential veto if the administration is
not also a partner in the process. In addition, the influence
of organized interest groups in support or opposition to a
proposal must be a part of the legislative calculus. All three
of these players--Congress, the administration, and interest
groups--played important roles in the enactment of the CDBG
Program and the continued debate surrounding the block
granting/consolidation of homeland security preparedness
grants.
By the early 1970s, there was near-universal agreement
among Congress, the Nixon administration, and interest groups
representing local governments that the then-current cadre of
categorical grant programs addressing the social, demographic,
economic, and physical development challenges facing the
Nation's metropolitan communities were inadequate.\4\ The
fragmented nature of Federal grant assistance, which was well
documented during congressional hearings conducted during the
89th Congress,\5\ coupled with concerns about the proper role
of the Federal Government in addressing problems facing the
Nation's urban areas, prompted renewed interest in grant
consolidation proposals as a means to improve management
efficiency, coordinate Federal assistance, and promote
comprehensive long-term planning and redevelopment efforts.
---------------------------------------------------------------------------
\4\ Congress' enactment of the CDBG Program was prompted by
widespread dissatisfaction with the state of Federal grant assistance
in general and community development policy in particular. Starting
with the Housing Act of 1949 and the Urban Renewal Program, which
authorized assistance to local governments for slum clearance and urban
redevelopment, through the 1960s, which saw the enactment of the Model
Cities Program and the creation of the Department of Housing and Urban
Development, Federal community development assistance expanded in
response to the problems facing the Nation's metropolitan communities.
These included issues of physical decay, population and employment
shifts, inadequate infrastructure, and the concentration and isolation
of low-income and minority populations in central cities of
metropolitan areas. To address these issues, Congress enacted a series
of narrowly targeted, categorical or project-based programs intended to
fund individual activities but generally lacking coordination among the
programs.
\5\ U.S. Congress, Senate Government Operations, Executive
Reorganization, The Federal Role in Urban Affairs: Part 3, 89th Cong.,
2d sess. (Washington, DC: GPO, 1966), p. 823 and various pages.
---------------------------------------------------------------------------
By comparison, the call for the consolidation of State and
local preparedness grants was part of a larger response to
terrorist activities in the United States and abroad, including
attacks on the World Trade Center in New York City in 1993, the
Alfred P. Murrah Federal Building in Oklahoma City in 1995, and
the terrorist attacks of September 11, 2001.\6\ In 2000, the
House approved by voice vote H.R. 4210. The bill would have
created a President's Council on Domestic Terrorism
Preparedness to recommend ways to strengthen interagency
planning and coordination and to ``identify duplication,
fragmentation, and overlap within federal terrorism
preparedness programs and eliminate such duplication,
fragmentation and overlap.'' The bill had strong bipartisan
support and, like CDBG, was driven by the perceived need to
address program fragmentation and create a more efficient and
effective approach to preparedness:
---------------------------------------------------------------------------
\6\ While earlier terrorist events, both here and abroad, may have
resulted in congressional discussion of funding for domestic
preparedness, the first proposal for a homeland security block grant
did not occur until after 9/11. Congressional activity after the 9/11
attacks also resulted in the creation of a new Cabinet department, U.S.
Department of Homeland Security (DHS). Shortly after DHS was created,
the agency was tasked with administering several State and local
preparedness grants. For the purposes of this report, discussion of
consolidation of State and local preparedness grant programs is limited
to the State and local preparedness grant programs administered by DHS.
Implementation of this legislation will ultimately result
in making the preparedness programs within the federal
government more effective. The Committee anticipates that some
programs will be eliminated or reworked according to the
national plan. The outcome of this reorganization will result
in the reduction of costs associated with providing duplicative
or unnecessary training programs and response teams.
Ultimately, the Committee believes this legislation will result
in more efficient and effective federal effort to prepare the
nation's emergency personnel against terrorist attacks.\7\
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\7\ U.S. Congress, House Committee on Transportation and
Infrastructure, Preparedness Against Terrorism Act of 2000, H. Rept.
106-731, July 13, 2000, p. 11.
The legislation was not enacted. However, in the
wake of the 9/11 terrorist attacks the following year, there
was a renewed focus on Federal grant funding for domestic
preparedness. Unlike CDBG, however, there was lack of consensus
among affected interest groups concerning how State and local
preparedness grants should be reformed.\8\
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\8\ Current discussions of the homeland security preparedness
grants generally include the following grant programs administered by
DHS: State Homeland Security, Urban Area Security Initiative, Non-
Profit Urban Area Security Initiative, Port Security, Operation
Stonegarden, Citizen Corps, Metropolitan Medical Response Systems,
Targeted Infrastructure Protection Program, Law Enforcement Terrorism
Prevention, Trucking Security, Intercity Bus Security, Rail Security,
Buffer Zone Protection, Interoperable Communications, Regional
Catastrophic Preparedness, REAL ID, and Emergency Operations Center.
---------------------------------------------------------------------------
The Road to Enactment (CDBG)
In 1971, fresh from a landslide reelection victory,
President Richard Nixon and his administration launched an
aggressive domestic policy agenda and christened it the New
Federalism. It promised a devolution of power to lower levels
of government, and thus closer to the people, by reversing what
the President, in a 1969 speech on domestic policy,
characterized as ``a third of a century of centralizing power
and responsibility in Washington.'' The President claimed that
this centralization had resulted in a Federal ``bureaucratic
monstrosity, cumbersome, unresponsive, ineffective'' and ``a
crisis of confidence in the capacity of government to do its
job.'' \9\ Although President Nixon's domestic policy agenda
called for the devolution of authority to localities and
States, it did not embrace a complete disengagement by the
national government from important domestic policy issues
facing the Nation, including what many viewed as an urban
crisis. Instead, the President's proposals were characterized
as addressing the problems of a broken intergovernmental grant
delivery system. Nowhere was that more evident than in the area
of community development.
---------------------------------------------------------------------------
\9\ President Richard Nixon, ``Address to the Nation on Domestic
Programs,'' August 8, 1969, at http://www.presidency.ucsb.edu/ws/
?pid=2191.
---------------------------------------------------------------------------
Although congressional leaders of both parties agreed that
existing programs addressing metropolitan needs were
inadequate, reaching agreement on a legislative solution
spanned 3 years and two Congresses before passage of the
Housing and Community Development Act of 1974 (P.L. 93-383). In
the process, the administration's legislative fortunes would
ebb and flow as it pushed Congress to enact its policy agenda
that called for the consolidation of 129 categorical grant
programs into what the Nixon administration termed 6 special
revenue sharing programs, including community development.\10\
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\10\ The 6 special revenue sharing programs were (1) education (33
programs), (2) transportation (26 programs), (3) urban community
development (12 programs), (4) manpower training (17 programs), (5)
rural community development (39 programs), and (6) law enforcement (2
programs). The administration's proposal was a hybrid of the block
grant concept that was first outlined as a recommendation of the
Commission on Organization of the Executive Branch of the Government,
Commission Reports on Overseas Administration, Federal-State Relations,
Federal Research, Vol. II, March 1949, p. 36.
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The Nixon administration favored a no-strings attached,
highly flexible grant format with minimal Federal restrictions
and oversight it dubbed ``urban development special revenue
sharing.'' The proposal, mentioned in President Nixon's 1971
State of the Union Address,\11\ was outlined in detail in a
March 1971 Special Message to Congress.\12\ The
administration's proposal initially called for the
consolidation of four programs administered by HUD, including
urban renewal, Model Cities, water and sewer grants, and
rehabilitation loans. It was later expanded to include 12
programs.
---------------------------------------------------------------------------
\11\ President Richard Nixon, ``Annual Message to the Congress on
the State of the Union,'' at http://www.presidency.ucsb.edu/ws/
?pid=3110.
\12\ President Richard Nixon, ``Special Message to the Congress on
Special Revenue Sharing for Urban Community Development,'' March 5,
1971, at http://www.presidency.ucsb.edu/ws/?pid=3339.
---------------------------------------------------------------------------
For its part, Congress favored a ``block grant'' approach
that provided local officials with a high degree of discretion
and flexibility in the mix of activities to be undertaken, as
proposed by the administration, but included sufficient
administrative controls and requirements to ensure that funds
would be used to meet national objectives articulated in the
act.\13\ It was this fundamental difference in approach that
prevented the administration's special revenue sharing proposal
from being enacted.\14\
---------------------------------------------------------------------------
\13\ For a review of CDBG funding history see CRS Report R43394,
Community Development Block Grants: Recent Funding History, by Eugene
Boyd.
\14\ Despite Congress' embrace of block grants in the early 1970s,
earlier block grant legislative proposals dating back to the 1950s
failed to win congressional approval. U.S. Advisory Commission on
Intergovernmental Relations, Block Grants: A Comparative Analysis, The
Intergovernmental Grant System: An Assessment of Proposed Policies,
October 1977, pp. 3-4, at http:// library.unt.edu/gpo/acir/Reports/
policy/A-60.pdf.
---------------------------------------------------------------------------
The Nixon administration's proposal faced a skeptical 92d
Congress, which was controlled by the opposite party, but one
willing to engage in bipartisan policy deliberations. Although
both Chambers reported omnibus housing bills out of
subcommittees and committees of jurisdiction, with overwhelming
bipartisan support, the full House failed to consider
legislation before adjournment of the 92d Congress due to the
actions of the House Rules Committee. By a vote of 9 to 5,\15\
the Rules Committee approved a motion to defer action on H.R.
16704, the omnibus housing bill that would have authorized the
creation of the program. Scholars and other observers have
cited a number of reasons for the Rules Committee action,
including the size (314 pages) and complexity of the bill, the
short time available to consider the bill before adjournment,
the lukewarm endorsement of the bill by House Banking and
Currency Committee Chairman Wright Patman, and objections by
civil rights organizations to the public housing provisions of
the bill.\16\
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\15\ The nine votes for the motion included five Democrats and four
Republicans. Five Democrats favored moving the bill forward for floor
consideration.
\16\ ``Rules Committee Kills Housing-Urban Development Act,''
Congressional Quarterly Almanac (1972), p. 628.
---------------------------------------------------------------------------
Two years later, committee leaders in the 93d Congress and
the administration again attempted to move community
development reform legislation forward. Much of the heavy
legislative lifting and responsibility for moving legislation
forward to enactment were done by the chairmen of the House and
Senate subcommittees of jurisdiction. In order to fashion a
bill acceptable to all parties, the subcommittee chairs took
several actions. These actions included seeking input from
organizations representing local governments and negotiating
with the White House and executive branch officials. The
subcommittee chairs initially negotiated directly with the
White House's domestic policy office and subsequently with the
Secretary of the Department of Housing and Urban Development--
as the White House became increasingly consumed and buffeted by
the unfolding Watergate scandal that would lead to the first
resignation of a U.S. President--in an attempt to reach
agreement on legislation. The negotiations were intended to
address fragmentation (which everyone agreed was necessary)
while at the same time including sufficient safeguards to
ensure that national objectives would be met (required to gain
Democratic support).
On February 27, 1974, Senator John Sparkman, chair of the
Senate Committee on Banking, Housing and Urban Affairs,
introduced S. 3066, a comprehensive bill affecting many aspects
of Federal housing and community development policy. The bill
served as the legislative vehicle for enactment of the CDBG
Program.\17\ The bill's community development provisions would
have merged 10 urban community development categorical grants
into a single block grant and provided that block grant a 2-
year funding cycle to ensure that local communities would have
an ``assured and adequate level'' of funding.\18\ The bill's
community development provisions were opposed by the
administration, which preferred its special revenue sharing
approach. The bill was reported by the Senate Committee on
Banking, Housing and Urban Affairs on February 27, 1974, and
was passed by the Senate on March 11 by a vote of 76 to 11.
Three months later, on June 20, the House passed its version of
S. 3066, inserting the language of H.R. 15361, into the bill.
The House bill would have merged seven urban community
development categorical grants into a single block grant.
Importantly, the block grant's distribution formula was
developed in collaboration with the Secretary of the Department
of Housing and Urban Affairs, which was seen as an attempt to
avoid a threatened Presidential veto. The House and Senate
versions of S. 3066 included significant differences in
approach to Federal housing policy, and the bills differed in
how the CDBG Program would be structured and financed. These
differences were resolved in the conference agreement on August
12, 1974.\19\
---------------------------------------------------------------------------
\17\ During the first session of the 93d Congress, at least six
bills were introduced supporting community development consolidation
and reform efforts, including the Nixon administration's Better
Communities Act proposal (H.R. 7277); the Community Development
Assistance Act of 1973 (S. 1744), sponsored by Senator Sparkman; and
the Housing and Urban Development Act (H.R. 10036), sponsored by
Representative William Barrett, the chairman of the House Subcommittee
on Housing. Each of the proposals affirmed previously established
positions. None of the bills was reported out of committee.
\18\ U.S. Congress, House Committee on Banking and Currency,
Housing and Community Development Act of 1974, 93d Cong., 2d sess., H.
Rept. 93-693 (Washington, DC: GPO, 1974), p. 2.
\19\ U.S. Congress, House Committee of Conference, Housing and
Community Development Act of 1974, 93d Cong., 2d sess., H. Rept. 93-
1279 (Washington, DC: GPO, 1974), pp. 1-23.
---------------------------------------------------------------------------
Final congressional approval of legislation creating the
CDBG Program, which led to the termination of eight urban
community development categorical grants, was achieved with
passage of S. 3066, the Housing and Community Development Act
of 1974.\20\ The act was signed into law as P.L. 93-383, by
President Gerald Ford, on August 22, 1974, 2 weeks after the
resignation of President Nixon in the wake of the Watergate
crisis.
---------------------------------------------------------------------------
\20\ The categorical programs that were terminated and their
activities included under the new block grant were (1) open space
acquisition, (2) public facilities loans, (3) urban renewal, (4) water
and sewer grants, (5) Model Cities, (6) Neighborhood Development
Program grants, (7) neighborhood facilities grants, and (8) historic
preservation grants.
---------------------------------------------------------------------------
In the lead up to the enactment of CDBG, there was
universal consensus among all stakeholders--the administration,
Congress, and interest groups--that reform was needed. It was
the direction and design of reform that required compromise in
order for reform to be enacted.
Not Yet Enacted (HSBG)
Like CDBG, congressional leaders also agreed with the Bush
administration's assessment that there was a need to improve
the grant administration process for State and local
preparedness grants. In his FY2002 budget request, President
George W. Bush recommended grant consolidation in this issue
area, noting that ``this budget reflects the Administration's
commitment to giving state and local governments increased
flexibility . . . . The Administration's efforts to improve the
grant administration process will include efforts to
consolidate grants that support programs with similar missions
to create one flexible grant.'' \21\
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\21\ U.S. Congress, House of Representatives, Budget of the United
States Government, Fiscal Year 2002, 107th Cong., 1st sess., H. Doc.
107-3 (Washington, DC: GPO, 2003), p. 195. Notably, the FY2002 budget
was submitted to Congress several months prior to the terrorist attacks
on September 11, 2001.
---------------------------------------------------------------------------
On November 28, 2001, just weeks after the 9/11 attacks,
Senator Hillary Rodham Clinton introduced a bill, cosponsored
by seven Democratic Senators, to establish the Homeland
Security Block Grant (HSBG) to be administered by the Attorney
General.\22\ According to the U.S. Conference of Mayors, the
HSBG was modeled after the CDBG:
---------------------------------------------------------------------------
\22\ S. 1737 was introduced on November 28, 2001, and referred to
the Senate Judiciary Committee.
Under this legislation, cities, counties, and towns across
America will be able to access Federal funds to help them
improve security and public safety locally. Modeled after the
Community Development Block Grant program, the Homeland
Security Block Grant Act provides $3 billion in funding to
communities, with 70 percent going directly to more than 1,000
cities and counties across the United States. The remaining 30
percent will be sent to the states, which will serve as a pass-
through for funds directed to smaller communities.\23\
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\23\ U.S. Conference of Mayors, ``Homeland Security Block Grant
Act,'' December 3, 2001, at http://www.usmayors.org/usmayornewspaper/
documents/12_03_01/security_block_grant2.asp.
The bill was not reported out of committee.\24\ Senator
Clinton reintroduced a revised version of the bill during the
second session of the 107th Congress with nine Democratic
cosponsors.\25\ The proposed block grant would have provided
funds for a fairly broad range of homeland security activities,
as determined by States and compiled into a statement of
homeland security objectives, and was to be allocated at the
States' discretion to local governments.\26\ Funds were to be
allocated to the States based upon a formula that predominantly
used population as the allocation criteria with the Federal
Emergency Management Agency (FEMA) as the administering Federal
agency. A companion bill was introduced the same day in the
House of Representatives by Representative Michael McNulty with
one Democratic cosponsor.\27\ In his FY2003 budget request,
President Bush also proposed ``streamlining support of local
law enforcement by consolidating duplicative programs'' through
the First Responder Initiative, but an administration bill was
never introduced.\28\ The bills were not reported out of
committee despite support by congressional policymakers, the
administration, and many stakeholders.\29\ This may have been
due, in part, to disagreements about whether the grant funds
should be awarded directly to local governments or funneled
through the States.\30\
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\24\ S. 1737 was endorsed by the National Association of Police
Organizations, the International Association of Fire Fighters, the
International Association of Fire Chiefs, and the U.S. Conference of
Mayors.
\25\ The bill was reintroduced as S. 2038, the Homeland Security
Block Grant Act of 2002, on March 20, 2002, and referred to the Senate
Committee on Environment and Public Works.
\26\ The bill proposed funding for these categories of activities:
additional law enforcement, fire, and emergency sources; purchasing
personal protective equipment for first responders; improving cyber and
infrastructure security, local emergency planning, information sharing,
and coordination; establishing notification systems; improving threat
communications systems; and devising homeland security plans.
\27\ H.R. 4059, the Homeland Security Block Grant Act of 2002, was
introduced on March 20, 2002, and referred to the House Transportation
and Infrastructure Committee, the House Judiciary Committee, and the
House Energy and Commerce Committee.
\28\ U.S. Congress, House of Representatives, Budget of the United
States Government, Fiscal Year 2003, 107th Cong., 2d sess., H. Doc.
107-59 (Washington, DC: GPO, 2003), p. 203.
\29\ Tim Craig, ``More Money Needed for Terrorism Fight, O'Malley
Tells Panel,'' Baltimore Sun, April 11, 2002.
\30\ U.S. Senate, Committee on the Judiciary, Homeland Security:
Assessing the Needs of Local Law Enforcement, hearing before the
Subcommittee on Crime and Drugs, 107th Congress, 2d Sess., S. Hrg. 107-
889, p. 10.
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In the absence of legislation authorizing a homeland
security block grant, Congress continued to fund separate State
and local preparedness grants through annual appropriations
acts, and key stakeholders in the preparedness grants community
continued to seek legislation to reduce program fragmentation
in this policy area.\31\ Instead, in 2007, Congress enacted
legislation (P.L. 110-53) that provided authorization for two
of the largest homeland security grant programs that had
previously existed solely through annual appropriations
legislation.\32\ The authorizing legislation established an
allocation formula for both programs that reinforced the
States' dominant role in the administration of preparedness
grants.\33\ Local government stakeholders had long advocated
reforming State and local preparedness grants to provide direct
assistance to the local level rather than going through the
States. As a result, local government stakeholders continued to
seek legislative reforms for these grants, even after the new
authorizing legislation was implemented.\34\
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\31\ During this time, the State and local preparedness grant
programs were shifted several times throughout the components in DHS.
For example, in 2006, the grants were administered by the Office of
State and Local Government Coordination and Preparedness, then in 2007
the grants were moved to the Preparedness Directorate established by
the FY2006 appropriations act, and in 2008, they were moved again to
the Office of Grant Programs in FEMA.
\32\ P.L. 110-53, Implementing Recommendations of the 9/11
Commission Act of 2007, authorized the Urban Area Security Initiative
Grant Program and the State Homeland Security Grant Program.
\33\ U.S. Congress, House of Representatives, Implementing
Recommendations of the 9/11 Commission Act of 2007, conference report
to accompany H.R. 1, Report 110-259, p. 288.
\34\ U.S. Congress, Senate Committee on the Judiciary, 107th
Congress, 2d Sess., hearing before the Subcommittee on Crime and Drugs,
Homeland Security: Assessing the Needs of Local Law Enforcement, S.
Hrg. 107-889, p. 10.
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Unlike the deliberations that took place during
consideration of the CDBG, the interest groups involved in the
deliberations for a State and local preparedness block grant
were divided, with State government officials advocating a
continuation of their dominant role in the administration of
the grants and local government officials advocating for more
direct funding that bypassed States. This may help to explain
why initial congressional interest in establishing a
preparedness block grant gave way to a congressional focus on
finding ways to achieve program efficiencies and stabilize
funding levels rather than creating a traditional block
grant.\35\ Another contributing factor is that the most recent
consolidation initiative, proposed by the Obama administration,
lacked the level of specificity seen in the bills introduced to
create a community development block grant regarding how DHS
would award funds. Notably, the administration did not use the
term ``block grant'' to describe the proposal, making it
difficult for stakeholders to understand how the proposal would
work. This lack of specificity created confusion among
stakeholders and Congress concerning how the administration's
proposal would affect (1) the distribution of funds among
jurisdictions, (2) funding for specific grant recipients, and
(3) both current and future funding levels.
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\35\ For example, Senator Susan Collins introduced S. 1245, the
Homeland Security Grant Enhancement Act of 2003, on June 12, 2003, to
provide for homeland security grants coordination and simplification.
The legislation did not create a block grant; rather, it sought to
streamline the grant administration process. The legislation had strong
bipartisan support and was reported by the Senate Committee on
Governmental Affairs (of which Senator Collins was chairwoman) but was
not enacted. Subsequent legislation dealing with the efficiency of the
homeland security grants were successful in getting enacted, such as
P.L. 111-271, the Redundancy Elimination and Enhanced Performance for
Preparedness Grants Act, which sought to identify and eliminate
redundant reporting requirements and establish performance metrics for
homeland security preparedness grants.
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For example, President Obama asked for $1.54 billion in his
FY2013 budget request to establish a National Preparedness
Grant Program (NPGP). The NPGP's vision document, released in
February 2012, indicated that the new grant would ``consolidate
[16] current grant programs . . . [to] enable grantees to
develop and sustain core capacities outlined in the National
Preparedness Goal instead of requiring grantees to meet the
mandates from multiple, individual, often disconnected, grant
programs.'' \36\ The vision document indicated that the grant
would ``elevate national preparedness capabilities by focusing
on regionally and nationally deployable assets,'' build and
sustain core capabilities, and base funding allocations ``on
prioritized core capacities as well as comprehensive threat/
risk assessments and gap analyses.'' \37\ The House
Appropriations Committee provided the following reason for
denying the administration's request.
---------------------------------------------------------------------------
\36\ U.S. Department of Homeland Security, FY2013 National
Preparedness Grant Program Vision Document, February 2012, at https://
www.fema.gov/pdf/about/budget/fy13_national_
preparedness_grant_program_overview.pdf.
\37\ Ibid., p. 4.
In fiscal year 2013, FEMA proposed a new grant program
called the National Preparedness Grant Program under State and
Local Programs. This proposal is denied due to the lack of
Congressional authorization and the lack of the necessary
details that are required for the initiation of a new program
to include grant guidance and implementation plans. The
Department should work with the appropriate committees of
jurisdiction to obtain the necessary authorizing legislation
and to clearly define the Federal role and reassess the most
effective delivery of support and resources to sustain and
improve homeland security capabilities prior to submitting a
budget request for such a program. Additionally, the Committee
met with and heard testimony from numerous stakeholders that
expressed concern not just with the grant proposal but also
with the lack of stakeholder outreach prior to the program's
introduction. The Committee considers this lack of outreach
concerning and it should be addressed.\38\
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\38\ U.S. Congress, House Committee on Appropriations, Department
of Homeland Security Appropriations Bill, 2013, report to accompany
H.R. 5855, 112th Cong., 2d sess., H. Rept. 112-492 (Washington, DC:
GPO, 2012), p. 113.
The Senate Appropriations Committee also did not endorse
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the proposal.
The reform proposal in the budget leaves key questions
unanswered, such as, how risk assessments will be used in
determining the distribution of resources, and to whom Federal
resources will be allocated. The Committee appreciates that the
Department and FEMA are seeking stakeholder input to answer
these key questions. However, until such questions can be
answered, it is premature to approve the reform proposal.\39\
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\39\ U.S. Congress, Senate Committee on Appropriations, Department
of Homeland Security Appropriations Bill, 2013, report to accompany S.
3216, 112th Cong., 2d sess., S. Rept. 112-169 (Washington, DC: GPO,
2012), p. 113.
The Obama administration proposed the NPGP again in its
FY2014 and FY2015 budget requests and received a similar
response from Congress both times. The administration indicated
that its FY2015 proposal included adjustments to respond to
concerns raised by stakeholders. The administration stated that
the consolidation was intended to address grant program
administration, efficiency, and effectiveness issues. According
to DHS, the consolidation of the State and local grant programs
would:
increase collaboration,
eliminate the redundancies and requirements placed on both
the Federal Government and the grantees,
provide greater certainty regarding the source and use of
funds, and
more closely align program implementation with other FEMA
disaster grant programs.\40\
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\40\ U.S. Department of Homeland Security, Federal Emergency
Management Agency: State and Local Programs FY2015 Congressional Budget
Justifications, pp. 4-5.
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Stakeholders opposed the NPGP proposal primarily because
they were worried that the consolidation could lead to reduced
funding and because they believed that the existing grant
program structure was ``working well by funneling funds to
local areas to develop and implement local and regional
responses to terrorism and other potential catastrophes.'' \41\
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\41\ Neil Bomberg, ``Funding Homeland Security Grants--The House,
the Senate, and the Administration Take Different Approaches,''
National League of Cities, April 29, 2013, at http://www.nlc.org/media-
center/news-search/funding-homeland-security-grants-%E2%80%93-the-
house-the-senate-and-the-administration-take-different-approaches.
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Concluding Observations
The statute creating the CDBG Program was primarily the
language and framework of the House Banking Committee's
Subcommittee on Housing but included important elements of
proposals approved by the Senate and put forth by the
administration.\42\ Several issues had to be addressed in an
effort to secure passage of the legislation, including:
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\42\ For a detailed discussion of the CDBG Program's origins and
legislative history see U.S. Advisory Commission on Intergovernmental
Relations, Community Development: The Workings of a Federal-Local Block
Grant, The Intergovernmental Grant System: An Assessment and Proposed
Policies (Washington, DC: GPO, March 1977), pp. 3-33, at http://
digital.library.unt.edu/ark:/67531/metadc1364/m1/1/.
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reaching agreement on the categorical programs that would be
terminated and activities folded into the new block grant,
providing for the transition from the categorical programs
to a block grant through the inclusion of hold harmless
provision in the authorizing statute that allowed for the
phasing in of previously unfunded jurisdictions and the phasing
out of others,
expanding the category of eligible entitlement communities
in order to win the support of urban county officials and
Members representing suburban congressional districts, and
adopting a distribution formula that effectively measured
community development need.
The CDBG Program won bipartisan congressional support
facilitated by (1) the inclusion of metropolitan-based counties
(urban counties) as entities eligible for direct, formula-based
allocation and (2) the inclusion of a hold harmless provision
intended to facilitate a 5-year transition from assistance
previously received under the former categorical grants to the
new block grant.
The enactment of CDBG legislation in 1974 was a departure
from the status quo of narrowly tailored and competitively
awarded categorical grants and marked a fundamental change in
the direction of Federal community development policy. The
program's longevity--40 years and counting--and its popularity
among Members of Congress can be attributable to several
factors:
The program's formula includes a minimum population-based
eligibility threshold that widens the base of congressional
support for the program.
Since its passage, congressional support was strengthened by
the inclusion of a second formula in 1977,\43\ the direct
administration of funds by States starting in 1982,\44\ and the
grandfathering of entitlement communities that no longer meet
minimum population threshold for entitlement status.\45\
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\43\ Three years after its enactment, Congress moved to
significantly reform the program, introducing a second allocation
formula intended to address a regional bias in the first formula that
favored communities in the South and West experiencing population
growth and high levels of poverty. The new formula--which included
poverty, housing built before 1940, and population growth lag--had the
effect of boosting the share of funds allocated to entitlement
communities in the Northeast and Midwest. Congress also added economic
development activities carried out by nonprofit and community-based
entities as a CDBG-eligible activity and created a new program--the
competitively awarded, project-based Urban Development Action Grants--
under the same statute.
\44\ In 1981, with the passage of the Omnibus Budget Reconciliation
Act (P.L. 97-35), Congress shifted, at the option of each State,
administrative responsibility for the small cities/nonentitlement
component of the CDBG Program to States, including allowing States to
establish the method for distributing funds within the State. Congress
also increased the percentage of appropriated funds allocated to the
State-administered program from 20 percent to 30 percent of the amount
appropriated. This was a significant coup for State Governors who had
complained that the program's then-current structure left them on the
sidelines. Despite calls for changes in the distribution formula,
Congress has made no additional changes to the allocation formula over
the last 33 years of the program.
\45\ The National Affordable Housing Act (P.L. 101-625) granted
CDBG entitlement status to entitlement communities that no longer met
the required population threshold if such communities had been so
classified for at least 2 years. The net effect of this grandfathering
provision--and the then-continued decline in funding for other
community and regional development programs--was to increase reliance
on the CDBG Program at a time when the number of entitlement
communities was steadily increasing.
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The program has extraordinary utility as a legislative
vehicle to respond to unanticipated events. Congress has used
the program on an ad hoc basis to respond to natural disasters,
terrorist attacks, and fiscal and financial crisis.\46\
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\46\ Examples of assistance outside the regular program include
Hurricane Katrina, the Midwest floods of 2008 and Hurricane Sandy, the
Oklahoma City bombing in 1995 and the 9/11 terrorist attacks, the
recession of 1982, and the subprime mortgage crisis of 2008.
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The program has withstood periodic calls for its
elimination and reform with strong bipartisan support,
including the Bush administration's 2006 Strengthening
America's Communities Initiative, the House Budget Committee's
effort during the FY2011 budget battle to eliminate the
program, and, most recently, the Obama administration's
proposals included in its FY2014 and FY2015 budget requests to
reform the program's formula and eligibility requirements.
By comparison, neither the proposed HSBG nor the NPGP
consolidation initiative was enacted despite over 14 years of
congressional debate. This could be, in part, because the
proposals failed to address the key issues that traditionally
arise in block grant debates:
Congress and the administration never reached agreement
regarding which grant programs to consolidate.
Both the HSBG and the NPGP failed to include provisions,
such as hold harmless provisions, to provide a transition from
the existing grant structure to the new grant program.\47\
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\47\ A ``hold harmless'' provision allows existing grant recipients
to be grandfathered into the new program either by maintaining past
funding levels for a certain period of time or ensuring the recipient
remain eligible under the new program regardless of eligibility
provisions in the authorizing legislation for the new grant program.
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Neither proposal expanded the pool of recipients or provided
stability in funding that would have widened the stakeholder
support for the proposal.
The proposed allocation formulas lacked sufficient detail to
determine how the program would impact stakeholders, thus
making it impossible to determine winners and losers.
Although early proposals to establish a homeland security
block grant failed, it could be argued that the authorization
of the two largest State and local preparedness grants in
2007--the Urban Area Security Initiative Grant Program and the
State Homeland Security Grant Program--essentially established
two block grants, because:
both programs allowed grant funds to be used for a wide
range of eligible activities within the broadly defined
functional area of preparedness,
State grant recipients in both programs had discretion in
the allocation of resources to the local level in ways that
aligned with national objectives,
efforts were made to streamline reporting requirements of
the programs and allow for flexibility in the use of funds,
both programs utilized a formula-based allocation method,
and
State and local governments were eligible recipients under
both programs.
It is worth noting that neither program was referred to as
a ``block grant'' despite meeting the traditional definition of
a block grant. It is also noteworthy that since the programs
were enacted in 2007, there have been no congressional
initiatives to establish a homeland security block grant.
Concerns about program fragmentation played a role both in
the enactment of CDBG and proposals to consolidate State and
local preparedness grants. However, unlike the deliberations
that led to the CDBG, there was a lack of consensus among
homeland security stakeholders concerning how to proceed. Local
government stakeholders wanted more direct funding, while State
government stakeholders wanted to continue the States' dominant
role in allocating Federal funds. This may help to explain why
efforts to create a comprehensive State and local preparedness
block grant were not successful. Even though the State and
local preparedness grants faced similar fragmentation issues
when compared to CDBG, the fragmentation was not a critical
element in the debate regarding consolidation. Like CDBG, the
concern with efficiency in the administration of the grant
programs was, and continues to be, widely discussed and has
been emphasized by Congress and the administration as
justification for various consolidation initiatives. While
there appeared to be consensus among Congress, the
administration, and stakeholders that there needed to be
homeland security grant reform to address the efficiency
issues, there was lack of consensus on the details necessary to
establish a new program and lack of collaboration among the
three in working out any points of disagreement.
Fear of the unknown also played a role. Unlike CDBG, which
featured detailed legislative proposals and introduced bills,
the Obama administration's NPGP was presented more as a concept
than as a bill. As a result, stakeholders worried about how
they might be affected and, in the absence of specific
provisions, were not willing to assume the risk inherent in
allowing the administration to proceed with consolidation
without specific authorizing legislation in place.
As has been shown, enacting block grants is difficult. As
scholars have noted, block grants lack some of the electoral
benefits that categorical grants can provide, and they
introduce an element of uncertainty in the policymaking
process, especially in the absence of hold harmless provisions,
that makes it more difficult for all stakeholders to support
change in the absence of consensus. Consensus concerning the
need to act, extensive collaboration, cooperation, and
compromise were integral parts of the tale of CDBG, and they
will continue to be key elements in the ongoing story of State
and local preparedness grants.
The Tax Extenders: How Congressional Rules and Outside Interests Shape
Policy
Molly F. Sherlock \1\
Coordinator of Division Research and Specialist
----------
Congress regularly acts to extend expired and expiring
provisions, colloquially referred to as ``tax
extenders.'' The first tax extenders package was passed
in the late 1980s. Extenders have regularly been
addressed by Congress since that time. Several factors
contributed to the enactment of temporary tax
provisions, including increased visibility of tax
expenditures in the Federal budget process, and budget
rules intended to achieve fiscal discipline. The
``opportunity for review'' provided by sunsets is often
given as a rationale for having temporary tax
provisions, although review rarely occurs in practice.
The number of tax extenders has increased over time,
particularly in the 2000s. Tax extenders persist, in
part, because short-term extensions appear less costly
than long-term extensions. Individually, for certain
groups, extender provisions are popular policy, with
short-term extensions often perceived as better than
expiration. Hence, many expect regular short-term
extensions of expired and expiring provisions to
continue, despite agreement among many in Congress that
the practice is suboptimal.
---------------------------------------------------------------------------
\1\ The author would like to thank Jane G. Gravelle, Steve Maguire,
Bob Dilger, John Haskell, Kevin Kosar, and Walter J. Oleszek for
helpful comments. The author would also like to thank Jared Nagel and
Jennifer Teefy, information research specialists at CRS, for their
assistance with background research.
---------------------------------------------------------------------------
Introduction
The U.S. tax code is rife with sunset provisions. Fifty-
seven temporary tax provisions expired at the end of 2013. Many
expect that nearly all of these provisions will be temporarily
extended before the end of 2014. Expired and expiring
provisions that are regularly temporarily extended by Congress
are colloquially referred to as ``tax extenders.''
Many in Congress agree that the current and regular
practice of extending expired tax provisions, often
retroactively, is problematic. Senate Finance Committee
Chairman Ron Wyden has noted that the ``stop and go nature [of
extenders] obviously contributes to the lack of certainty and
predictability America needs.'' Chairman Wyden stated firmly
that the April 3, 2014 markup was the last time the Finance
Committee would take up tax extenders, so long as he remains
chairman.\2\ Orrin Hatch, Finance Committee Ranking Member, has
expressed ``deep reservations about temporary tax policies.''
\3\ He also stated that Congress ``should not continue doing
business as usual when it comes to extenders.'' \4\
---------------------------------------------------------------------------
\2\ U.S. Congress, Senate Committee on Finance, Open Executive
Session to consider an original bill entitled ``Expiring Provisions
Improvement Reform and Efficiency (EXPIRE) Act,'' 113th Cong., 2d
sess., April 3, 2014, Opening Statement of Senator Ron Wyden, available
at http://www.finance.senate.gov/imo/media/doc/
04032014%20extenders%20markup%20statement.pdf.
\3\ Orrin Hatch, ``Small Business Jobs and Tax Relief Act--Motion
to Proceed,'' Congressional Record, July 11, 2012, p. S4838.
\4\ Orrin Hatch, ``Extension of Tax Extenders,'' Congressional
Record, March 14, 2012, p. S1660.
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The leadership of the House Committee on Ways and Means has
also expressed frustration with the tax extenders practice.
Chairman Dave Camp recently noted that tax extenders are one of
the best examples of undesirable and unnecessary complexity in
the tax code.\5\ Ranking Member Sander Levin has echoed a point
raised by many, that permanent tax policy is preferable to
frequent short-term extensions.\6\ Despite the view of many
that temporarily extending expiring provisions is suboptimal
tax policy, the practice is expected to continue.
---------------------------------------------------------------------------
\5\ Opening Statement of Chairman Dave Camp at Hearing on the
Benefits of Permanent Tax Policy for America's Job Creators, April 8,
2014, available at http://waysandmeans.house.gov/news/
documentsingle.aspx?DocumentID=377136.
\6\ Opening Statement of Ranking Member Sander Levin at Full
Committee Hearing on Business Tax Provisions in the Camp Tax Plan,
April 8, 2014, available at http://democrats. waysandmeans.house.gov/
press-release/opening-statement-ranking-member-sander-levin-full-
committee-hearing-business-tax.
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This research explores the historical origins and
development of the ``tax extenders,'' paying particular
attention to the role that Congress as an institution has
played in creating this package of temporary tax policies. As
argued below, the tax extenders are a consequence of
policymaking in a constrained environment. In this case, a
primary constraint is the budget rules Congress has imposed on
itself. While the intent of budget rules was broader fiscal
discipline, the tax extenders practice, to some degree, might
be considered a byproduct of fiscal discipline efforts. Budget
rules were one among many reasons why various provisions were
made temporary rather than permanent when initially enacted.
Budget rules have played a role not only in creating, but also
in sustaining, this regularly occurring lawmaking ritual.
Although budget rules were instrumental in shaping the tax
extender practice in its current form, there are arguably other
reasons that Congress continues to temporarily extend expiring
tax provisions. While fiscal considerations remain important,
recent experience has shown that Congress is not unwilling to
enact deficit increasing, permanent, tax legislation. Does this
suggest that the continuation of the tax extenders practice
involves more than adherence to budgeting rules and
conventions?
Since the 1990s, political commentators have observed that
tax extenders could provide a lobbying opportunity.\7\ Thus,
temporary extenders are not only a convenient tool for reducing
the apparent cost of tax breaks. With both internal and
external forces that favor the tax extenders practice in its
current form, despite acknowledgement of the extenders practice
being problematic as tax policy, the practice may continue.
---------------------------------------------------------------------------
\7\ ``Washington Update--Asking for an Extension,'' National
Journal, March 30, 1996.
---------------------------------------------------------------------------
The following section explores the origins of tax extenders
by looking at how certain tax expenditures became tax
extenders. A history of tax extender legislation is then
provided, which traces congressional action on tax extenders
through periods of tight fiscal control and projected budget
surpluses and exploring how tax extenders evolved into must-
pass legislation that is often not paid for. A brief discussion
of the external influence interest groups have on the extenders
practice is followed by concluding remarks.
The Origins of ``Tax Extenders''
The practice of extending a group of expired or expiring
temporary tax provisions began in the late 1980s, after the Tax
Reform Act of 1986 (TRA86; P.L. 99-514). The Technical and
Miscellaneous Revenue Act of 1988 (TAMRA; P.L. 100-647)
extended eight expiring tax provisions. These provisions were
contained in a separate title, ``Extensions and Modifications
of Expiring Tax Provisions.'' \8\ Although the relative merits
of various temporary tax provisions were evaluated in the 100th
Congress,\9\ the expiring provisions were ultimately given a
uniform 1-year extension in TAMRA. The temporary extensions
given to expiring provisions were criticized by some, with one
tax aide noting that ``tax policy ha[d] become secondary to
revenue.'' \10\ Despite this criticism, subsequent legislation
continued the practice of grouping together expired or expiring
temporary tax provisions for a short-term extension as tax
extenders.
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\8\ Although temporary tax provisions had previously been extended,
leading some to contend that the ``tax extender'' practice began in the
late 1970s, TAMRA was the first time such provisions were considered as
a group in a separate title.
\9\ U.S. Congress, Senate Committee on Finance, Subcommittee on
Taxation and Debt Management, Expiring Tax Provisions, 110th Cong., 2d
sess., March 28, 1988, S. Hrg. 100-1002.
\10\ Pat Jones, ``Tax Policy Considerations Triumphed in Technical
Corrections Bill, Aides Say,'' Tax Notes Today, November 14, 1988.
---------------------------------------------------------------------------
The research tax credit, often cited as the longest
standing tax extender, was one of the temporary tax provisions
extended in TAMRA.\11\ The credit first entered the code as a
temporary provision as part of the Economic Recovery Tax Act of
1981 (P.L. 97-34).\12\ The research tax credit included a
sunset to allow Congress the ``opportunity to evaluate the
operation and efficacy of the new credit.'' \13\ Although
opportunity for evaluation was given as a policy rationale for
the inclusion of a sunset for the research credit, other
factors may have led to the enactment of other tax provisions
on a temporary rather than permanent basis. The budget
environment of the 1970s, and the circumstances surrounding the
enactment of temporary tax expenditures during that decade,
provides additional insight into the origins of the tax
extenders practice.
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\11\ For a legislative history and more information, see CRS Report
RL31181, Research Tax Credit: Current Law and Policy Issues for the
113th Congress, by Gary Guenther.
\12\ TRA86 made significant changes to the research tax credit and
extended the credit through 1988.
\13\ U.S. Congress, Joint Committee on Taxation, General
Explanation of the Economic Recovery Act of 1981, committee print, 97th
Cong., December 29, 1981, JCS-71-81, p. 121.
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From Tax Expenditures to Tax Extenders
The first ``tax extenders'' package was passed in 1988, but
the roots of the tax extenders practice can be traced to the
budget policy of the 1970s. The major budget legislation of the
1970s, the Congressional Budget and Impoundment Control Act of
1974 (P.L. 93-344), reflected an effort by Congress to gain
more control over budget priorities.\14\ In the early 1970s,
many in Congress objected to President Richard Nixon's refusal
to spend certain appropriated funds.
---------------------------------------------------------------------------
\14\ For additional discussion, see Allen Schick, The Federal
Budget: Politics, Policy, and Process (Washington, DC: Brookings
Institution Press, 2000), pp. 17-22.
---------------------------------------------------------------------------
Congress had become familiar with the concept of tax
expenditures, and even made efforts to limit this form of tax
policy, years earlier. The first tax expenditure estimates were
voluntarily prepared by the Department of the Treasury in
1968.\15\ Although the executive branch resisted regular
publication of tax expenditure estimates, P.L. 93-344 required
that tax expenditure estimates be included in the President's
annual budget submission. With annual tax expenditure estimates
available, and ``spending through the tax code'' more visible,
questions soon arose as to whether tax expenditures should be
subject to a more rigorous budget review process.\16\ Shortly
after enactment of the 1974 Budget Act, a push began in
Congress to enact ``sunset'' legislation. This effort was
sustained into the late 1970s.
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\15\ Tax expenditures are revenue losses resulting from tax
provisions (e.g., credits, deductions, exclusions, reduced rates,
deferrals) that provide special tax relief. Tax expenditures are often
viewed as spending programs channeled through the tax code.
\16\ ``Tax Expenditure Budget: Pluses and Minuses,'' Tax Notes,
February 10, 1975, p. 3.
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Proposals in both the 94th and 95th Congresses (S. 2925 and
S. 2, respectively), introduced by Senator Edmund Muskie, would
have required 5-year termination dates for tax expenditures (in
addition to periodic termination for authorized spending
programs). The Sunset Act (S. 2) had 62 cosponsors, with
support split across the 2 political parties. The poor fiscal
climate and the public view of the government as bloated and
inefficient contributed to the Carter administration's support
of sunset laws.
Although the Carter administration backed sunset
legislation, support was not universal within the Democratic
Party, particularly when it came to tax expenditures. Senator
Russell B. Long, chairman of the Finance Committee, strongly
opposed sunsets for tax expenditures. In his view, sunset
legislation that included tax expenditures would create a path
for ``backdoor'' tax increases, without the policy change being
reviewed by the Finance Committee.\17\ Thus, tax expenditure
sunsets could be seen as an encroachment on Finance Committee's
jurisdiction. Senator Long also objected to sunset provisions
because they would shift the burden of proof, reducing the
power of the Finance Committee.\18\ When tax expenditures are
permanent, the burden of challenging tax expenditures falls on
the opponents, who have to come out in favor of repeal. Having
tax expenditures automatically expire would require a
filibuster-proof majority in the Senate and Presidential
support to ensure extension.
---------------------------------------------------------------------------
\17\ Stanley Surrey and Paul R. McDaniel, ``The Tax Expenditure
Concept: Current Developments and Emerging Issues,'' Boston College Law
Review, vol. 20, no. 6 (January 1979), p. 332.
\18\ Ibid., p. 333.
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Chairman Long, with the support of other Finance Committee
members, prevented the advancement of a tax expenditure sunset
measure during consideration of the Revenue Act of 1978 (H.R.
13511). Senator Long's motion to table an amendment offered by
Senator John Glenn, to require periodic re-approval of all tax
expenditures, was agreed to 50 to 41. Finance Committee members
voted 11 to 2 in support of Chairman Long's motion.
Although Chairman Long was successful at keeping tax
expenditures out of the sunset bill (S. 2), and preventing
across-the-board tax expenditure sunsets in other revenue
measures, the idea of sunsets in the tax code had nonetheless
been introduced.
In the late 1970s, several new tax expenditure measures
were enacted with sunsets. Revenue considerations were one of
several reasons a new tax expenditure measure may have included
a sunset. The Revenue Act of 1978 (P.L. 95-600) introduced an
income exclusion for employer-provided educational assistance.
The Senate version of the bill proposed the exclusion as a
permanent provision.\19\ The House version of the 1978 tax cut
act did not contain this particular provision, and the
provision was made temporary as part of the conference
agreement. The exclusion for employer-provided educational
assistance was one of the many provisions scaled back in
conference to reduce the overall budgetary cost of the bill. In
this case, the provision was scaled back by including a sunset.
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\19\ The Carter administration did not approve of the Senate
Finance Committee's version of the 1978 tax act, objecting to certain
provisions related to capital gains and the bill's overall revenue
cost. See ``Conferees OK College Tax Credit Plan of Up to $250,'' Los
Angeles Times, September 29, 1978.
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Other temporary tax measures that were part of TAMRA, but
enacted in the 1970s, include the exclusion for group prepaid
legal services and the energy credit for solar and geothermal
property. The exclusion for group prepaid legal services was
enacted as part of the Tax Reform Act of 1976 (P.L. 94-
455).\20\ In adopting this provision, Congress requested that
the Departments of the Treasury and Labor study the provision,
to evaluate the ``desirability and feasibility of continuing
the benefits provided by [the] provision.'' \21\ Tax benefits
designed to support emerging technologies, such as the energy
credits for solar and geothermal property introduced as part of
the Energy Tax Act of 1978 (P.L. 95-618), may have been enacted
as temporary provisions, with the presumption that such
incentives will be allowed to expire once the technology
matures.\22\
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\20\ The exclusion for group prepaid legal services expired June
30, 1992.
\21\ U.S. Congress, Joint Committee on Taxation, General
Explanation of the Tax Reform Act of 1976, committee print, 94th Cong.,
December 29, 1976, JCS-33-76, pp. 668-671.
\22\ The energy credit for solar and geothermal was not allowed to
expire. Instead, the credit was made permanent as part of the Energy
Policy Act of 1992 (P.L. 102-486).
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Tax policy change in the early 1980s made it more difficult
to enact tax cuts. In addition to providing tax cuts, the
Economic Recovery Tax Act of 1981 (P.L. 97-34) indexed
individual income tax parameters for inflation. Before
indexation, inflation would cause individuals to ``creep'' into
higher tax brackets over time. With bracket creep, increasing
revenues provided a ``fiscal dividend'' that could be (and was)
used to pay for tax cuts. Without inflation-induced income
growth and the resulting bracket creep, revenues could not be
expected to continually increase, making it harder to find
revenue offsets for tax cuts (rate reductions or targeted
preferences).\23\
---------------------------------------------------------------------------
\23\ For further discussion, see the companion CRS centennial
report in this volume, The Dynamics of Congressional Policymaking: Tax
Reform, by Jane G. Gravelle.
---------------------------------------------------------------------------
Tax Extender Legislation and Fiscal Controls
Chairman Long, in an effort to maintain the authority of
the Finance Committee, was successful in preventing tax
expenditure sunsets en masse. Nonetheless, for various reasons,
sunsets crept into new tax expenditures enacted in the late
1970s and early 1980s. With the enactment of TAMRA in 1988, the
practice of regularly extending a package of expired or
expiring provisions began. And thus the ``tax extenders'' came
into being.
Early tax extenders legislation was revenue neutral. The
revenue cost of temporary tax extensions enacted in TAMRA was
offset by various revenue-increasing provisions. Although TAMRA
was enacted before the adoption of statutory pay-as-you-go
(PAYGO) requirements, there was budget legislation in place to
deter Congress from enacting deficit-increasing legislation. In
response to the poor fiscal climate of the early 1980s, in
1985, Congress enacted the Balanced Budget and Emergency
Deficit Control Act (P.L. 99-177), commonly known as the Gramm-
Rudman-Hollings (GRH) Act.\24\ GRH required annual reductions
in budget deficits, with the ultimate goal of achieving a
balanced budget. Under GRH, deficit limits were to be enforced
by an automatic cancellation of budget resources, or a
sequester order.\25\
---------------------------------------------------------------------------
\24\ The main sponsors of the legislation were Phil Gramm, Warren
Rudman, and Ernest Hollings. For background, see CRS Report R41901,
Statutory Budget Controls in Effect Between 1985 and 2002, by Megan S.
Lynch.
\25\ The initial GRH sequestration process was invalidated by the
Supreme Court in Bowsher v. Synar. A revision was passed in 1987 (P.L.
100-119).
---------------------------------------------------------------------------
Tax extenders were included in the Omnibus Budget
Reconciliation Act of 1989 (OBRA89; P.L. 101-239). Initially,
the Bush administration did not support the inclusion of tax
extenders. In testimony before the Finance Committee, a
Treasury official noted that the administration believed that
the expiring tax provisions were economically inefficient tools
for achieving underlying policy objectives.\26\ OBRA89 as
enacted, however, did include a 9-month extension of expiring
tax provisions.\27\ On the whole, the reconciliation bill
reduced the deficit. Reacting to the final legislation, Senate
Budget Committee Chairman Jim Sasser observed ``it is superior
to a full year of indiscriminate, mindless, across-the-board
cuts.'' \28\
---------------------------------------------------------------------------
\26\ The Bush administration did, however, support making the
research tax credit permanent. See ``Let Expiring Provisions Die, Says
Treasury,'' Tax Notes, March 20, 1989, p. 1410 and Testimony of
Department of the Treasury Tax Legislative Counsel Dana Trier, in U.S.
Congress, Senate Committee on Finance, Revenue and Spending Proposals
for Fiscal Year 1990, hearings, 101st Cong., 1st sess., March 14-15,
1989, S. Hrg. 101-108 (Washington, DC: GPO, 1995).
\27\ A 6-month extension had been proposed in the Senate version of
the bill, and a 1-year extension proposed in the House.
\28\ By ``indiscriminate'' Chairman Sasser was referring to
sequestration. ``Fini! Congress Passes $5.6 Billion Tax Bill,'' Tax
Notes, November 27, 1989, p. 1039.
---------------------------------------------------------------------------
Although the threat of sequester may have influenced OBRA89
negotiations, GRH ultimately failed to achieve deficit
reduction targets. A key reason for this failure was the
requirement that projected deficits, rather than actual
deficits, achieve target levels. In effect, deficit targets
were achieved on paper but not in reality. Congress responded
to rising deficits by enacting the Budget Enforcement Act of
1990 (BEA; P.L. 101-508). The BEA enacted statutory PAYGO
rules, effectively requiring Congress to ``pay for'' changes in
tax policy that would reduce Federal revenues, relative to
current law. Like GRH, BEA constrained fiscal policy by
imposing rules to confine Federal revenue policy
decisionmaking. By enacting PAYGO, Congress effectively
indicated that it believed it could not be trusted to maintain
``revenue neutrality'' when it came to tax legislation.\29\ The
BEA was included as part of the Omnibus Budget Reconciliation
Act of 1990, which raised top income tax rates, extended
expiring provisions for 1 year, and reduced expected budget
deficits.
---------------------------------------------------------------------------
\29\ Cheryl D. Block, ``Pathologies at the Intersection of the
Budget and Tax Legislative Process,'' Boston College Law Review, vol.
43, no. 4 (July 1, 2002), p. 884.
---------------------------------------------------------------------------
The Tax Extension Act of 1991 (P.L. 102-227) was devoted
exclusively to tax extenders. Both Ways and Means Committee
Chairman Dan Rostenkowski and Finance Committee Chairman Lloyd
Bentsen supported temporary tax extensions, but were reluctant
to suggest revenue offsets as required under PAYGO.\30\ With
limited offsets available, expiring tax provisions were
extended for 6 months. Early in 1992, Chairman Rostenkowski
called a series of hearings to evaluate tax extenders. As the
chairman stated in his opening statement to one of the
extenders hearings:
---------------------------------------------------------------------------
\30\ ``The $1.7 Billion Question: What About Expiring Provisions?''
Tax Notes, October 14, 1991, p. 134.
The burden is now on this committee to decide which of
these provisions are worthwhile to find a way to pay for their
permanent extension and to let the others expire. Each of the
expiring provisions has its supporters. However, not all of
these provisions have survived on their own merits. Some have
enjoyed free rides as stowaways on the annual extenders
package. The free ride stops here.\31\
---------------------------------------------------------------------------
\31\ U.S. Congress, House Committee on Ways and Means, Permanent
Extension of Certain Expiring Tax Provisions, Serial 102-83, 102d
Cong., 2d sess., January 28, 29, and February 10, 1992.
Chairman Rostenkowski indicated that the committee should
take final action on extenders during the 102d Congress, ending
the practice ``once and for all.'' \32\
---------------------------------------------------------------------------
\32\ Ibid.
---------------------------------------------------------------------------
Ultimately, no additional action was taken in the 102d
Congress. Extenders were allowed to lapse after June 30, 1992.
President William Clinton's first budget, released in February
1993, proposed to make permanent a number of the expired tax
provisions.\33\ Later the Clinton administration put forward a
detailed tax plan, which also proposed making extenders
permanent. Extenders were a less discussed part of the
administration's overall tax proposal, which sought to reduce
the deficit by increasing taxes on higher income taxpayers and
impose a new broad-based energy tax (the Btu tax, which was
ultimately replaced with a smaller gas tax increase in the
Senate).
---------------------------------------------------------------------------
\33\ Department of the Treasury, Summary of the Administration's
Revenue Proposals, Washington, DC, February 1993, http://
www.treasury.gov/resource-center/tax-policy/Documents/ General-
Explanations-FY1994.pdf.
---------------------------------------------------------------------------
The administration's proposal was introduced in the House
as the Revenue Reconciliation Act of 1993 (H.R. 1960),
sponsored by Chairman Rostenkowski. Although permanent
extensions passed in the House, Finance Committee Democrats
decided not to permanently extend most expired provisions,\34\
thus reducing the overall cost of these measures.\35\ Temporary
extensions were included in the Omnibus Budget Reconciliation
Act of 1993 (OBRA93; P.L. 103-66).\36\
---------------------------------------------------------------------------
\34\ Several ``extender'' provisions were made permanent in the
OBRA93, including the low-income housing tax credit.
\35\ ``Finance Committee Democrats Present Tax Plan,'' Tax Notes
Today, June 18, 1993.
\36\ The six provisions extended in OBRA93 were extended for
varying lengths of time.
---------------------------------------------------------------------------
In 1995, it was expected that expired and expiring
provisions would be rolled into reconciliation legislation.
However, extenders were ultimately left out of the budget deal
that emerged from the tense negotiations that occurred near the
end of 1995 (a funding lapse resulted in two government
shutdowns in late 1995, the second lasting into the beginning
of 1996). During the mid-1990s, revenue considerations were the
primary reason particular provisions were given temporary
status.\37\ With regard to the 1995 debate surrounding
extenders in the Senate, one tax aide noted that extenders
could be revised and their cost ``dialed'' to fit the revenue
needs of an overall tax package.\38\ In 1996, extenders were
included as part of the Small Business and Job Protection Act
(P.L. 104-188). The cost of the temporary tax extensions
included in P.L. 104-188 were offset with other tax increases.
---------------------------------------------------------------------------
\37\ ``Expiring Provisions Never Die, They Just Become `Extenders,'
'' Tax Notes Today, December 2, 1996.
\38\ ``Finance Republicans `Finish' Tax Bill; Details Elusive,''
Tax Notes Today, October 16, 1995.
---------------------------------------------------------------------------
Temporary tax provisions were extended again in 1997 as
part of the Taxpayer Relief Act (TRA97; P.L. 105-34). As a
stand-alone package, the TRA97 decreased revenues. The costs of
TRA97 were offset by spending reductions in another 1997
reconciliation bill, the Balanced Budget Act of 1997 (P.L. 105-
33).
In 1998, extenders were again included in omnibus budget
legislation (Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999 [P.L. 105-277]). Earlier in 1998, the
House had passed extenders as a separate bill (H.R. 4738). The
extenders bill had been introduced by Ways and Means Committee
Chairman Bill Archer. It passed the House in a voice vote with
no opposition during debate. Chairman Archer wanted extenders
kept out of the omnibus package, preferring to address
extenders as a separate measure. However, when it became
evident that the Senate could not pass the House-passed
extenders, it became clear that including extenders in the
omnibus bill would ensure that the temporary provisions were
extended. Expiring provisions were extended through June 30,
1999, and the cost of extension was offset.\39\
---------------------------------------------------------------------------
\39\ `` `Monster' Budget Bill Signed; Applause is Muted,'' Tax
Notes, October 26, 1998, p. 399.
---------------------------------------------------------------------------
During the 1990s, the budget rules Congress had imposed on
itself were working, at least in the sense that extensions of
expiring tax provisions were part of legislative packages that
did not add to the deficit (using conventional scorekeeping).
Tax extenders had become an annual ritual. By the end of the
1990s, the regular sunsetting of tax expenditure provisions did
not appear to be a practice designed to allow Congress to
evaluate the efficacy of expiring tax provisions. Instead, the
annual termination of tax extenders was used to adhere to self-
imposed budgeting rules. The result was a set of complex,
uncertain, and economically inefficient tax policies.
Although temporary extensions of expiring tax provisions
was the norm during the 1990s, the number of provisions
extended as tax extenders had not changed substantially. In
1988, nine provisions had been included in the section of TAMRA
providing for ``extensions and modifications of expiring tax
provisions.'' In 1998, 6 provisions were included in the title
of P.L. 105-277 providing for an ``extension of expiring tax
provisions,'' although that figure had increased to 11 when
extenders were next addressed in 1999.\40\
---------------------------------------------------------------------------
\40\ This count excludes the reauthorization of the Generalized
System of Preferences.
---------------------------------------------------------------------------
Fiscal Discipline Unraveling
Through the late 1990s, the budgetary cost of temporarily
extending expired or expiring provisions was generally offset.
On multiple occasions, extenders were included in major deficit
reduction packages or omnibus budget legislation. In other
instances, extenders were paid for through other tax increases.
This changed in 1999, as legislative maneuvering allowed for
the effective exemption of tax extenders from PAYGO.
Budget surpluses in the late 1990s provided momentum for
Republican-supported tax cuts. Ways and Means Committee
Chairman Bill Archer and Finance Committee Chairman William
Roth both proposed major tax reduction legislation, which
became the Taxpayer Refund and Relief Act of 1999. This
legislation was passed by both Chambers, but was vetoed by
President Clinton. The Clinton administration objected to tax
relief legislation that did not meet PAYGO requirements.\41\
The Archer-Roth package had an estimated cost of $792 billion
over 10 years.\42\
---------------------------------------------------------------------------
\41\ Block, ``Pathologies at the Intersection of the Budget and Tax
Legislative Process,'' pp. 892-893.
\42\ Joint Committee on Taxation, ``Estimated Budget Effects of the
Conference Agreement for H.R. 2488,'' JCX-61-99R, August 5, 1999,
https://www.jct.gov/publications.html?func= startdown&id=2775.
---------------------------------------------------------------------------
After President Clinton vetoed the Taxpayer Refund and
Relief Act, legislative attention turned to tax extenders. At
issue was whether the extenders package should be paid for. In
the Senate, Chairman Roth had initially pushed for a 5-year tax
extenders package, but shortened the extension in response to
concerns over the cost. The extenders package that was marked
up by the Finance Committee was revenue neutral, with part of
the cost offset by repealing a provision allowing for deferral
of gain on nondealer installment sales for accrual method
taxpayers.\43\ The extenders proposal that was marked up in the
House did not include revenue offsets.\44\ The extenders
package that emerged from conference was not fully paid for,
but did include the installment sale repeal provision as a
partial offset (the Ticket to Work and Work Incentives
Improvement Act of 1999 [P.L. 106-170]).\45\ Treasury Secretary
Lawrence H. Summers stated that although the administration
``would ideally [have] liked to have seen the tax extenders
legislation paid for in full,'' the circumstances surrounding
tax extenders in 1999 led the administration to be willing to
``accept the cost.'' \46\
---------------------------------------------------------------------------
\43\ An installment sale is a sale of property for which at least
one payment is scheduled to be received after the tax year in which the
sale occurred. Certain taxpayers are allowed to prorate profits from
installment sales over the tax years in which payments are received.
For additional background, see U.S. Congress, Senate Committee on the
Budget, Tax Expenditures: Compendium of Background Material on
Individual Provisions, committee print, prepared by the Congressional
Research Service, 112th Cong., December 2012, S. Prt. 112-45, pp. 759-
771.
\44\ Joint Committee on Taxation, ``Estimated Revenue Effects of
Expiring Provisions Scheduled for Markup by the Committee on Ways and
Means on September 24, 1999,'' JCX-65-99, September 23, 1999, https://
www.jct.gov/publications.html?func=startdown&id=2793.
\45\ Block, ``Pathologies at the Intersection of the Budget and Tax
Legislative Process,'' pp. 893-894.
\46\ Heidi R. Glenn, ``Extenders Bill Begins to Inspire Head-
Scratching,'' Tax Notes, December 27, 1999, p. 1618.
---------------------------------------------------------------------------
Even the partial offset was short-lived. Chairman Archer
urged the administration to provide relief from the installment
sale repeal, and the administration conceded that the provision
could have a negative impact on some small businesses. In 2000,
Congress passed and President Clinton signed the Installment
Tax Correction Act of 2000 (P.L. 106-573), which retroactively
repealed the repeal (effectively reinstated), the installment
sale method provision. Even though the Installment Tax
Correction Act reduced receipts, Congress had already taken
action to set PAYGO balances to zero for legislation enacted in
FY2001.\47\
---------------------------------------------------------------------------
\47\ The Consolidated Appropriations Act of 2001 (P.L. 106-554)
contained a ``directed scorekeeping'' measure that set PAYGO balances
to zero for FY2001. With directed scorekeeping, Congress directs CBO
(or OMB) on how to account for a various measure. Because PAYGO
balances were set to zero in P.L. 106-554 for FY2001, the revenue cost
of P.L. 106-573 was not required to be offset.
---------------------------------------------------------------------------
Budget rules did exert pressure on the tax extenders
process in 1999, and may have prevented the longer term
extension that was initially sought in the Senate. The actions
taken by Congress in 2000, repealing the partial pay that was
included in the 1999 tax extenders package, illustrates an
inherent limitation in congressional rules. That is, budget
rules and associated enforcement mechanisms are, as concluded
by Block (2002), ``only as good as the congressional will to
abide by [them].'' \48\
---------------------------------------------------------------------------
\48\ Block, ``Pathologies at the Intersection of the Budget and Tax
Legislative Process,'' p. 933.
---------------------------------------------------------------------------
The 1999 and 2000 extenders process and related-legislative
developments have been cited as an example of the shift in
power away from individual Members of Congress to party
leadership and executive officials.\49\ In 1999, Treasury
Secretary Lawrence H. Summers was a key player in the
negotiations that culminated in the final version of the
extenders package. It was at his direction that the installment
sale repeal was included as an offset. The extenders process in
1999 was also an anomaly in that extenders were considered as a
separate package. In several instances, extenders had simply
been included in end-of-year tax legislation, not having been
considered under ``regular order.'' Without consideration at
the committee level, or when buried in part of large-scale
budget or tax legislation that is negotiated in conference,
there is less opportunity for Members outside of leadership to
evaluate the extenders as a package, or review the relative
merits of specific extender provisions.
---------------------------------------------------------------------------
\49\ Block, ``Pathologies at the Intersection of the Budget and Tax
Legislative Process,'' pp. 909-910.
---------------------------------------------------------------------------
Tax Extenders in the 2000s
Tax policy in the early 2000s was dominated by the 2001/
2003 tax cuts. Extenders were allowed to expire at the end of
2001 and were not included in the Economic Growth and Tax
Relief Reconciliation Act of 2001 (EGTRRA; P.L. 107-16), the
first of the two major tax cuts signed into law by President
George W. Bush. Although EGTRRA did not include extenders, the
legislation did include sunsets for many of the tax provisions.
There were two key reasons for including sunsets in EGTRRA: (1)
to avoid having a reconciliation bill that would decrease
revenues outside of the 10-year budget window, which would
likely trigger a point of order under the Byrd rule in the
Senate; and (2) to lower revenue losses in the bill.\50\
Sunsets may have been crafted as a response to the legislative
and budget process, instead of on the basis of sound tax
policy. Without sunsets, there was not a plausible path forward
for the tax cuts in EGTRRA.
---------------------------------------------------------------------------
\50\ For discussion on sunsets in EGTRRA, see Rebecca M. Kysar,
``The Sun Also Rises: The Political Economy of Sunsets in the Tax
Code,'' Georgia Law Review, vol. 40, no. 2 (winter, 2006), pp. 335-405.
The Byrd rule, named after its principal sponsor, Senator Robert C.
Byrd, prohibits the Senate from considering ``extraneous matter'' as
part of a reconciliation bill. ``Extraneous matter'' includes, among
other things, provisions that would increase the deficit outside of the
budget window. For more on the Byrd Rule, see CRS Report RL30862, The
Budget Reconciliation Process: The Senate's ``Byrd Rule,'' by Bill
Heniff, Jr.
---------------------------------------------------------------------------
Tax extenders were included in the Job Creation and Worker
Assistance Act of 2002 (P.L. 107-147), which enacted bonus
depreciation as a ``temporary'' stimulus measure,\51\ provided
additional temporary unemployment assistance, and extended tax
relief to New York City in the wake of the 2001 terrorist
attacks. There was substantial back-and-forth between leaders
in both Chambers regarding the contents of the 2002 stimulus
measure, but extenders were not a major part of the
negotiation. During the 2002 stimulus negotiations, Finance
Committee Chairman Charles Grassley observed that extenders
were likely to be tacked on to any moving tax vehicle, stating,
``There's no dispute about them going.'' \52\ Congress
designated the Job Creation and Worker Assistance Act of 2002
as an ``emergency requirement,'' exempting the cost of the
legislation from the PAYGO process.\53\
---------------------------------------------------------------------------
\51\ For background on bonus depreciation in the tax extenders, see
CRS Report R43432, Bonus Depreciation: Economic and Budgetary Issues,
by Jane G. Gravelle.
\52\ Patti Mohr and Warren Rojas, ``Senate Adds Small Business
Expensing to Stimulus Package,'' Tax Notes Today, January 30, 2002.
\53\ For more on emergency requirements in statutory PAYGO as in
effect through 2002, see CRS Report R41005, The Statutory PAYGO Process
for Budget Enforcement: 1991-2002, by Robert Keith. The BEA's statutory
PAYGO requirement expired in 2002. A statutory PAYGO measure was
enacted in 2010. Both Chambers have also created their own PAYGO rules.
The Senate's PAYGO rules remain in effect, but the House removed PAYGO
from its rulebook in 2011 (replacing it instead with a CUTGO rule).
---------------------------------------------------------------------------
In 2003, the Bush administration proposed another major
``Jobs and Growth'' tax cut. In response to concerns from
Senate moderates regarding the cost of the proposal, Finance
Committee Chairman Grassley set a limit on the overall cost of
the tax cuts that could be passed using reconciliation.\54\
Once again, costs were constrained by using and adjusting
sunsets. While Congress passed the Jobs and Growth Tax Relief
Reconciliation Act of 2003 (JGTRRA; P.L. 108-27), there were a
number of critics. Senator Olympia Snowe called the bill ``a
trillion-dollar tax cut masquerading as a $350 billion tax
cut.'' \55\ Even though tax extenders expired in 2003, they
were not included in major 2003 tax legislation. The House
passed a 1-year extension (H.R. 3521). On the Senate side,
Chairman Grassley proposed a shorter extension that was fully
offset (S. 1896). Finance Committee Ranking Member Max Baucus
was an original cosponsor of S. 1896. Extenders were again
taken up in 2004, and included as part of the Working Families
Tax Relief Act of 2004 (P.L. 108-311).
---------------------------------------------------------------------------
\54\ For discussion, see Kysar, ``The Sun Also Rises: The Political
Economy of Sunsets in the Tax Code,'' pp. 378-382.
\55\ Ibid., p. 381.
---------------------------------------------------------------------------
EGTRRA and JGTRRA had introduced a number of sunsets that
were beyond the scope of what typically had been considered tax
extenders. By the mid-2000s, the extension of tax extenders
began to occur within legislation extending the EGTRRA/JGTRRA
sunsets (or preventing the automatic tax increase that would
have occurred had these provisions been allowed to expire). The
Working Families Tax Relief Act of 2004 extended EGTRRA/JGTRRA
tax cuts, as well as extenders. There were no statutory PAYGO
rules in place in 2004, and the Working Families Tax Relief Act
of 2004 was enacted without offsets.
In the 109th Congress (2005-2007), efforts were made in the
Senate to evaluate certain extender provisions.\56\
Nevertheless, it was in the waning days of Congress that
extenders were simply extended for 2 years, in a business-as-
usual fashion. Some energy-related provisions that were
previously part of the extenders package had been addressed
earlier in the Energy Policy Act of 2005 (P.L. 109-58). The
rest of the extenders were addressed at the end of 2006, in the
lame duck session. The Tax Relief and Health Care Act of 2006
(P.L. 109-432) included extenders, as well as several health
and trade-related items. Upon passage in the House, Ways and
Means Chairman William M. Thomas said, ``[t]his legislation
reflects the must-do pieces of business we need to complete
this year.'' While there was some debate regarding which
nonextender measures might be included in the package, and how
the tax provisions might be paid for, extenders were widely
viewed as ``must pass,'' even if they were not going to be paid
for.\57\
---------------------------------------------------------------------------
\56\ On March 16, 2005, Senate Finance Committee Chairman Chuck
Grassley held a hearing, ``Expiring Tax Provisions: Live or Let Die.''
Hearing documents and testimony can be found at http://
www.finance.senate.gov/hearings/hearing/?id=489b8874-f79a-3b8b-6f12-
9bec1647d515.
\57\ There was some discussion of limiting extenders to 1 year, as
opposed to 2 years. Reporting on this strategy suggests that a 1-year
package was sought to ``make life difficult'' for Democrats who
intended to reinstate PAYGO rules upon taking control of the Senate in
2008. See Wesley Elmore, ``Some GOP Lawmakers Aim to Limit Extenders to
One Year, Aide Says,'' Tax Notes Today, November 20, 2006.
---------------------------------------------------------------------------
In 2008, extenders were included in stimulus and financial
rescue legislation (the Emergency Economic Stabilization Act of
2008 [EESA; P.L. 110-343]). Fiscally conservative House
Democrats, including members of the so called ``Blue Dog''
Coalition, objected to passing extenders without offsets. As a
result, extenders legislation that was passed in the House
(H.R. 7060) was fully paid for. The Senate objected to some of
the offsets included in the House-passed bill. The Senate
adopted an extenders package that was partially offset, enough
to allow extenders to be included in the economic rescue
package.
With many of the tax cuts enacted in EGTRRA and JGTRRA set
to expire at the end of 2010, and again at the end of 2012,
addressing the sunsets associated with the tax extenders was a
secondary focus. The Tax Relief, Unemployment Insurance
Reauthorization, and Job Creation Act of 2010 (P.L. 111-312)
extended the EGTRRA/JGTRRA tax relief for 2 years, through
2012. Extenders were included in this legislation. In 2012,
when much of the tax relief that had first been provided in
EGTRRA and JGTRRA was made permanent, tax extenders were once
again granted a temporary extension (see the American Taxpayer
Relief Act of 2012 [ATRA; P.L. 112-240]). ATRA was estimated to
reduce revenues by $3.6 trillion over the 10-year budget
window, increasing the deficit by $4.0 trillion over the same
period.\58\ Much of this cost can be attributed to the
permanent extension of tax cuts that were first enacted with
sunsets in 2001 and 2003. Thus, in recent years, Congress had
shown a willingness to forgo offsets to extend current tax
policy, but not in the case of extenders.
---------------------------------------------------------------------------
\58\ Congressional Budget Office, ``Estimate of the Budgetary
Effects of H.R. 8, the American Taxpayer Relief Act of 2012, as passed
by the Senate on January 1, 2013,'' January 1, 2013, http://
www.cbo.gov/sites/default/files/cbofiles/attachments/
American%20Taxpayer%20Relief%20 Act.pdf.
---------------------------------------------------------------------------
The 2000s could also be dubbed the era of temporary tax
provisions. It was under the shadow of EGTRRA and JGTRRA, and
broader uncertainty about the structure of tax rates, that the
number of temporary tax provisions included in the extenders
substantially increased. As noted above, the 1999 tax extenders
package included 11 extender provisions. In 2002, 14 provisions
were included in the ``extension of certain expiring
provisions,'' Title III of the Job Creation and Worker
Assistance Act.\59\ By 2008, there were 32 individual and
business provisions included as ``tax extensions'' in EESA. As
noted earlier, 57 temporary provisions expired at the end of
2013 (including disaster-related provisions), and it is
expected that nearly all of these expired provisions will be
further extended.
---------------------------------------------------------------------------
\59\ This count excludes the repeal of the requirement that
terminals selling diesel fuel and kerosene must sell both dyed and
undyed fuel.
---------------------------------------------------------------------------
In 2014, Congress is once again considering the issue of
tax extenders. Unlike in recent years, the consideration of
extenders has not been overshadowed by other major sunsets in
the tax code. There is, however, disagreement as to whether
extenders should be continued as temporary provisions or select
provisions granted permanent status. There are also opposing
views regarding whether the cost of permanent extensions should
be offset. The Committee on Finance, under the leadership of
Chairman Ron Wyden, reported legislation that would extend most
expiring provisions for 2 years. The Ways and Means Committee,
under the leadership of Chairman Dave Camp, has considered a
series of proposals that would make permanent certain
provisions that are currently part of the extenders package.
Chairman Camp's desire to make certain provisions permanent is
also motivated by budgeting restrictions. Making expiring
provisions permanent would reduce the tax revenue baseline,
making it easier to design a revenue-neutral tax reform
plan.\60\ While 2014 has brought more attention to extenders
than has been given in recent years, it seems the practice may
continue.
---------------------------------------------------------------------------
\60\ Katy O'Donnell, ``Extenders Are Part of the Long Game in Tax
Overhaul,'' Roll Call, July 16, 2014, http://www.rollcall.com/news/-
234880-1.html?pg=1&dczone=policy.
---------------------------------------------------------------------------
Tax Extenders: Here for the Long Haul?
Since the tax extenders practice began in the 1980s,
numerous Members have vowed to end the uncertainty and stop the
periodic, often retroactive, extensions of expiring provisions.
One reason tax extenders have persisted is budgetary; short-
term extensions appear less costly than long-term extensions.
Thus, fiscal conservatives from either party often have the
power to block Congress from approving longer term or permanent
extensions. A second reason tax extenders persist is also
related to money. Tax extenders represent a lobbying
opportunity.\61\ By the mid-1990s, as extenders had become tax
policy ``business as usual,'' critics began to highlight the
fundraising opportunities provided by the extenders
process.\62\
---------------------------------------------------------------------------
\61\ Legal scholar Rebecca M. Kysar has explored political-economy
concerns related to sunsets in the tax code, particularly as related to
lobbying and rent-seeking activities. See Kysar, ``The Sun Also Rises:
The Political Economy of Sunset Provisions in the Tax Code,'' pp. 335-
405 and Rebecca M. Kysar, ``Lasting Legislation,'' University of
Pennsylvania Law Review, vol. 159 (2011), pp. 1007-1068.
\62\ ``Lobbyists See New Daylight for Extenders,'' Tax Notes Today,
March 19, 1995. Jill Barshay, ``Temporary Tax Breaks Usually a
Permanent Reality,'' CQ Weekly, November 15, 2003, p. 2831.
---------------------------------------------------------------------------
Industry groups that benefit from particular tax extender
provisions hire lobbyists to ensure their targeted tax benefits
are renewed. With extenders regularly scheduled to sunset, by
the time one extension is passed, it is time to start pushing
for the next round. Tax law professor Victor Fleischer recently
wrote that ``lobbying over tax extenders is today's Gucci
Gulch. The practice can be viewed as an innovative method for
legislators to extract campaign contributions from interest
groups and exert influence at a time when committee power is
generally weak.'' \63\
---------------------------------------------------------------------------
\63\ Victor Fleischer, Tax Extenders, San Diego Legal Studies,
Paper No. 14-159, April 24, 2014.
---------------------------------------------------------------------------
Concluding Remarks
Congress' requiring of annual tax expenditure estimates
brought attention to ``spending through the tax code'' in the
form of tax breaks. The increased visibility of tax
expenditures put pressure on Congress to limit their use, or,
at the very least, limit their cost. Although late 1970s
efforts to enact legislation that would sunset all tax
expenditures was ultimately unsuccessful, for various reasons,
sunsets began to find their way into newly enacted tax
expenditures. With multiple provisions expiring at the same
time, Congress enacted what might be considered the first ``tax
extenders'' package in 1988, temporarily extending a group of
expiring tax provisions.
The ``opportunity for review'' provided by sunsets is often
given as a rationale for having temporary tax provisions. While
this may have been the case when certain tax expenditures were
first adopted, the budget rules Congress imposed on itself
ultimately contributed to what is now a regular ``tax
extenders'' ritual. In the wake of the surpluses of the late
1990s, budget rules were relaxed and fiscal discipline became
less stringent. It was during the 2000s, in the tax-policy era
following the 2001/2003 tax cuts, the number of temporary tax
provisions included in the code substantially increased.
In recent years, tax extenders have regularly been extended
without being paid for. The willingness for Congress to enact
deficit-increasing tax cuts in recent years, however, does not
mean that the extenders are likely to be made permanent. While
recently there have been renewed efforts in the House to make
certain extenders permanent, this effort is being driven by
policy principals as well as budgetary rules.
Policymaking in practice is more than simply thinking about
``good policy.'' Policy is made in a complex political
environment. In the case of tax extenders, budget rules and
procedures played an important role in the development of the
practice. External forces have a vested interest in maintaining
the status quo. Thus, in the case of tax extenders, tax policy
principals are not the only factors driving congressional tax
policymaking.
Appendix. List of ``Tax Extenders'' Legislation
There is no formal definition of ``tax extenders''
legislation. Over time, ``tax extenders'' legislation has come
to be considered legislation that temporarily extends a group
of expired or expiring provisions. Using this characterization,
below is a list of what could be considered ``tax extenders''
legislation. Using this list, tax extenders have been addressed
15 times. The package of provisions that are included in the
tax extenders has changed over time, as Congress has added new
temporary provisions to the code, and as certain provisions are
either permanently extended or given temporary extension on
other tax legislation.
American Taxpayer Relief Act of 2012 (P.L. 112-240)
Tax Relief, Unemployment Insurance Reauthorization, and Job
Creation Act of 2010 (P.L. 111-312)
Emergency Economic Stabilization Act of 2008 (P.L. 110-343)
Tax Relief and Health Care Act of 2006 (P.L. 109-432)
Working Families Tax Relief Act of 2004 (P.L. 108-311)
Job Creation and Worker Assistance Act of 2002 (P.L. 107-
147)
Ticket to Work and Work Incentives Improvement Act of 1999
(P.L. 106-170)
Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999 (P.L. 105-277)
Taxpayer Relief Act of 1997 (P.L. 105-34)
Small Business and Job Protection Act of 1996 (P.L. 104-188)
Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66)
Tax Extension Act of 1991 (P.L. 102-227)
Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508)
Omnibus Budget Reconciliation Act of 1989 (P.L. 101-239)
Technical and Miscellaneous Revenue Act of 1988 (P.L. 100-
647)
The Dynamics of Congressional Policymaking: Tax Reform
Jane G. Gravelle
Senior Specialist in Economic Policy
----------
It is often suggested that an overhaul of the tax code
is badly needed and that a reform similar to that
achieved in 1986 is needed. But what is often
overlooked is how rare comprehensive tax reform is and,
especially, what conditions are associated with it.
Normally major changes are implemented by Congress only
after crises, such as war or economic upheaval. At the
very least, preconditions for reform include
Presidential leadership, insulation from political
pressures, strong congressional leadership, and
effective messaging--as pertained in 1986. Currently
these factors are largely absent, and, along with more
limited options for broadening the base, make the
prospects for reform much dimmer than many have
asserted.
Introduction
The current drive for income tax reform might be dated from
the formation of the President's Bipartisan Fiscal Commission
(informally known as the Simpson-Bowles Commission \1\) in
February 2010.\2\ Although the fundamental purpose of the
commission was to deal with the deficit, it also had tax reform
objectives. The commission's proposal in December 2010,\3\
however, included only a few specific income tax base-
broadening provisions, with a general reference to eliminating
tax expenditures. It is possible, also, to look further back
for the roots of the current tax reform movement. President
Bush established a commission on tax reform in January 2005.
The detailed report was issued at the end of 2005.\4\ Beginning
in 2005, Senator Ron Wyden introduced a series of detailed tax
reform proposals that would have broadened the revenue base.\5\
Whether the tax reform effort is 9 years old or 4, the latest
significant development is the introduction, in February 2014,
of Ways and Means Committee Chairman Dave Camp's proposed draft
legislation, the Tax Reform Act of 2014.\6\
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\1\ The cochairmen of the commission were former Senator Alan
Simpson and Erskine Bowles, former Chief of Staff in the Clinton
administration.
\2\ Many legislative proposals use the term tax reform. In this
analysis, following political scientist John Witte, tax reform is
identified as a proposal where the legislative changes in tax
expenditures that raise revenue exceed those that reduce revenue. See
John F. Witte, ``The Tax Reform Act of 1986: A New Era in Tax
Politics?,'' American Politics Research, vol. 19, no. 4 (October,
1991), pp. 438-457.
\3\ National Fiscal Commission on Fiscal Responsibility and Reform,
The Moment of Truth, The White House, December 2010, http://
www.fiscalcommission.gov/sites/fiscalcommission.gov/files/documents/
TheMomentofTruth12_1_2010.pdf.
\4\ The President's Advisory Commission on Tax Reform, Simple,
Fair, and Pro-Growth: Proposals to Fix America's Tax System, 2005,
http://govinfo.library.unt.edu/taxreformpanel/final- report/index.html.
\5\ These bills include, from the 109th Congress through the 112th,
S. 1927. S. 1111, S. 3018, and S. 727.
\6\ U.S. Congress, House Committee on Ways and Means, ``Camp
Releases Tax Reform Plan to Strengthen the Economy and Make the Tax
Code Simpler, Fairer and Flatter,'' press release, February 26, 2014,
http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=
370987.
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The Tax Reform Act of 1986 (TRA86; P.L. 99-514), now almost
30 years old, has often been proposed as a roadmap for tax
reform. To understand the lessons of TRA86 for the challenges
of policymaking today, it is useful to consider current tax
reform activity through the prism of history. A historical
review provides a reference point for comparing the scope of
change under consideration and the types of events that
surrounded major changes in taxes in the past. Virtually all
scholars who have studied the history of tax policy in the
United States have concluded, to some degree at least, that tax
changes tend to be limited and incremental during normal
economic and social times.\7\
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\7\ The discussion of the early years of tax policy is based on a
number of studies of the development of Federal taxes and the Federal
income tax in particular. It includes Roy G. Blakey and Gladys C.
Blakey, The Federal Income Tax (New York: Longmans, Green and Co.,
1940); Randolph Paul, Taxation for Prosperity (Indianapolis: Bobbs-
Merrill Company, 1947); Sidney Ratner, Taxation and Democracy in
America (New York: Octagon Press, 1967); John F. Witte, The Politics
and Development of the Federal Income Tax (Madison, Wisconsin:
University of Wisconsin Press, 1967); Sheldon D. Pollack, The Failure
of U.S. Tax Policy (University Park, PA: Pennsylvania State University
Press, 1996); and W. Elliot Brownlee, Federal Taxation in America, 2d
ed. (New York: Cambridge University Press, 2004).
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That view tends to portray TRA86 as an anomaly that
required a convergence of a number of conditions that do not
appear to exist in the current tax reform effort.\8\ Among
those conditions that have been identified as facilitating tax
reform in 1986 are strong Presidential leadership, development
of a plan without taking political pressures into account,
beginning with a broad plan reflecting basic reform principles,
and sheer luck. Moreover, in 1986 many more potential base-
broadening provisions existed than is the case today.
Especially with respect to the corporate tax, the 1986 revision
could be said to have picked the low hanging fruit, making base
broadening more difficult.
---------------------------------------------------------------------------
\8\ This view suggests that tax reform would be unlikely even if
political polarization of Congress had not increased since 1986. For
measures of increased polarization see Norman J. Ornstein et al., Vital
Statistics on Congress: Data on the U.S. Congress--A Joint Effort from
Brookings and the American Enterprise Institute, July 2013, http://
www.brookings.edu/research/reports/2013/07/vital-statistics-congress-
mann-ornstein. See also Drew DeSilver, Partisan Polarization, in
Congress and Among Public, Is Greater Than Ever, Pew Research Center,
July 17, 2013, http://www.pewresearch.org/fact-tank/2013/07/17/
partisan-polarization-in-congress-and-among-public-is-greater-than-
ever/.
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This brief examination of the history of taxation and the
lessons it holds for today begins with the birth of the Nation
and the financial crisis the young country's central government
faced. It continues through upheavals such as war and
depression. Before examining TRA86 and its implications for the
current tax reform effort, the next section is a review of the
relatively stable and peaceful environment that persisted from
the end of World War II through the adoption of TRA86. After
discussing post-1986 tax changes, the report compares
conditions surrounding the current tax reform effort with those
in 1986.
Tax Regimes Through World War II
Historian Elliot Brownlee identifies only five major tax
regime changes, each associated with an external financial
crisis.\9\ These crises include the constitutional crisis of
the 1780s, the three great wars (the Civil War, World War I,
and World War II), and the Great Depression.
---------------------------------------------------------------------------
\9\ Brownlee, Federal Taxation in America.
---------------------------------------------------------------------------
A Taxing Power for the Central Government
The problems of a central government without the power to
tax (and pay debts) became evident during the Revolutionary War
and under the Articles of Confederation. It led to the
formation of the first major tax regime. The Constitution
provided the Federal Government authority to levy indirect
taxes, such as tariffs and excise taxes. Through most of the
early history of the Nation, the major source of tax revenue
was tariffs. Internal taxes were unpopular with Western and
Southern States, and an early excise tax on whiskey resulted in
the ``whiskey rebellion'' of 1794 by farmers in the West and
South. Taxes on distilled spirits, as well as most other excise
taxes enacted by the Federalists, were repealed after Thomas
Jefferson was elected President in 1800 (although they were
temporarily reinstated during the War of 1812).
The Constitution limited the taxing powers of the central
government by allowing direct taxes (the poll and property
taxes levied by the States) only if apportioned by the
census.\10\ Whether that restriction was intended to apply to
income taxes (which were not used at the time) is not clear.
From time to time, the Federal Government used taxes
apportioned by State population, including during the
undeclared naval war with France (1798-1800), the War of 1812,
and the Civil War.
---------------------------------------------------------------------------
\10\ According to Brownlee (p. 20), there were fears that the
central government could single out a particular industry or property
to tax. Slaveholders were concerned about a tax on slaves, farmers
about a tax based on acreage, and urban dwellers about a tax based on
value. Ratner (p. 19) indicated that at the time direct taxes tended to
be land and poll taxes, and the restriction was intended to prevent the
wealthy industrial Northeast from putting the tax burden on sparsely
populated agricultural States.
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The Civil War
The second major regime involved the need to finance the
Civil War, which led to the adoption of the first income tax.
Despite subsequent uncertainties about the constitutionality of
the income tax, it was adopted in 1863 in the wake of rising
war debt and declining tariff revenues. It remained in place
until 1872. The Confederacy also adopted an income tax,
although, according to Ratner, delays and failures in
administration limited its effectiveness.\11\
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\11\ See Ratner (pp. 100-110) for an analysis of finance in the
Confederacy. War finance in the Confederacy is discussed in Gustavo A.
Flores-Macias and Sarah Kreps, ``Political Parties at War: A Study of
American War Finance,'' American Political Science Review, vol. 107,
no. 4 (November 2013), pp. 833-848.
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The inclusion of the income tax was, according to Blakey
and Blakey, forced on Thaddeus Stevens, chairman of the Ways
and Means Committee, who ``considered himself the ruler of the
House.'' \12\ Stevens had proposed a tax on land (apportioned
by the census) and an increase in tariffs, both of which were
seen by western farmers as unfairly falling on them. The income
tax partially offset the need for land tax revenues.
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\12\ Blakey and Blakey, The Federal Income Tax, p. 4.
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The Modern Income Tax and World War I
Brownlee does not consider the introduction of the income
tax (the corporate tax in 1909 and the individual tax in 1913)
as a major regime change; in his view, it was a small, almost
token, tax at the time. Brownlee states that World War I
provoked a new tax regime (see below). Others attach more
significance to the birth of the modern income tax. It came
about in a surprising fashion, with the first corporate tax
enacted during Republican control of the government. These
scholars attach considerable importance to the growing populist
sentiment for an income tax.
In 1894 an income tax had been adopted in the wake of the
depression following the 1893 panic, but it was found
unconstitutional by the Supreme Court in 1895.\13\ For years,
southern and western Senators and Representatives introduced
income tax proposals as many viewed the 1895 Supreme Court
decision overturning the 1894 income tax to be in error. In
1909 a group of insurgent Republicans joined with Democrats to
increase pressure for an income tax. While they did not prevail
in the House under the iron rule of Speaker Joseph Cannon, they
appeared likely to win a vote for an income tax in the Senate.
Nelson Aldrich, chairman of the Senate Finance Committee,
appealed to President Howard Taft. The positive response by
President Taft contributed to the eventual compromise that led
to the adoption in 1909 of the first corporate income tax. The
corporate tax was introduced by Representative Sereno Payne
(majority leader and chairman of the Ways and Means Committee)
and Senator Aldrich in the Payne-Aldrich Tariff Act.\14\ The
corporate tax and a proposed constitutional amendment to allow
income taxes were advanced--with the support of President Taft
and conservative Republicans--to deflect the growing pressure
to enact a general income tax.\15\ The proposed constitutional
amendment was viewed by many who supported it as a ``harmless
gesture''; they believed that the amendment would not be
ratified.\16\
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\13\ Pollock v. Farmers' Loan and Trust Company, 157 U.S. 429
(1895).
\14\ Aldrich stated, ``I shall vote for a corporation tax as a
means to defeat the income tax.'' See Bennett D. Baack and Edward John
Ray, ``Special Interests and the Adoption of the Income Tax in the
United States,'' Journal of Economic History, vol. 45, no. 3 (September
1985), p. 624.
\15\ An account of the 1909 congressional deliberations that led to
the corporate income tax is presented in considerable detail in Ratner,
Taxation and Democracy in America, pp. 265-297, and in Blakey and
Blakey, The Federal Income Tax, pp. 22-59.
\16\ Paul, Taxation for Prosperity, p. 19.
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Upon ratification of the Sixteenth Amendment in 1913, an
income tax was enacted that year during the Wilson
administration. It affected only high-income families. (The
exemption for married couples was $538,000 in 2005
dollars.\17\) Rates ranged from 1 percent to 7 percent. The
1909 corporate tax had a significant exemption, but the 1913
tax had no exemption, with a rate of 1 percent in both cases.
---------------------------------------------------------------------------
\17\ Jane Gravelle and Jennifer Gravelle, ``Taxing Poor Families:
The Evolution of Treatment under the Federal Income Tax,'' Connecticut
Public Interest Law Journal, vol. 7 (2008), p. 37.
---------------------------------------------------------------------------
According to Brownlee, the third crisis that produced a tax
regime change was the fiscal demands of World War I. The war
transformed a small, insignificant income tax into an important
one. Consider changes in the Revenue Act of 1916. That act,
adopted during the Wilson administration, increased tax rates
on high-income Americans and corporations, including an excess
profits tax on munitions makers. The excess profits tax was
subsequently expanded and extended to all businesses, and the
top rate of the individual tax, which began at 7 percent in
1913, rose to 67 percent by 1917. The excess profits tax
financed two-thirds of the cost of the war.\18\
---------------------------------------------------------------------------
\18\ Brownlee, Federal Taxation in America, pp. 64-65.
---------------------------------------------------------------------------
There is some dispute among scholars as to whether the
demands to break corporate privilege and ``soak the rich'' also
played a role in the taxes on the wealthy and corporations.
Brownlee supports that view. With respect to the corporate tax,
he states that ``the question became one of whether the modern
corporation was the central engine of productivity, which tax
policy should reinforce, or whether it was an economic
predator, which tax policy could and should tame.'' \19\ Views
of the corporate tax that echo these issues are part of the
current tax reform debate, especially with respect to
multinational corporations.
---------------------------------------------------------------------------
\19\ Ibid., p. 61.
---------------------------------------------------------------------------
Professor John Witte disagrees with the view that a ``soak
the rich'' ideology, as opposed to revenue needs, played a
role; he cites the financing demands of World War I and finds
little evidence for a redistributional motive.\20\
---------------------------------------------------------------------------
\20\ Witte, The Politics and Development of the Federal Income Tax,
pp. 81-82. Brownlee (p. 60) describes influence of a group of
Democratic insurgents (led by Representative Claude Kitchens of North
Carolina, chairman of the House Ways and Means Committee) to focus
wartime finance on income taxes for the wealthy and corporations.
---------------------------------------------------------------------------
After the war, Republicans came to power and began the
Mellon tax cuts of the 1920s (guided by Secretary of the
Treasury Andrew Mellon). The excess profits tax, strongly
opposed by business, was repealed, and top individual tax rates
were cut (eventually from 73 percent to 24 percent). The
ordinary corporate tax rate was retained. Yet the income tax
was now an important revenue source, surpassing the previously
dominant customs collections. The income tax was firmly
ensconced in the Federal revenue system.
The Great Depression
The Great Depression, according to Brownlee, was the fourth
crisis that led to significant increases in income tax rates.
As revenues dropped due to the reduction in economic activity
and deficits increased, additional revenue was sought. (Note
that current economic theory would counsel against such a tax
increase in a depression, but at this time, the opposite view
was dominant.) Individual income tax rates that had ranged from
1 percent to 25 percent were increased to 4 percent to 63
percent. Corporate rates were increased modestly, but
exemptions (which had reappeared) were eliminated. An attempt
to adopt a sales tax, proposed by Mellon and supported by
President Hoover, was characterized by Ratner as a conflict
between the ``soak the rich'' and sales tax advocates. It was
soundly defeated in the House.\21\ Instead, income taxes under
President Hoover were increased in the Revenue Act of 1932. A
number of tax increases were enacted during the Depression,
including higher corporate and individual income taxes,
additional excise taxes, and payroll taxes to finance Social
Security.
---------------------------------------------------------------------------
\21\ Ratner, Taxation and Democracy in America, p. 446.
---------------------------------------------------------------------------
World War II
World War II transformed the landscape of taxation,
converting the individual income tax from one confined largely
to higher income taxpayers to a mass tax via several tax
increases. Perhaps the most important tax increase was enacted
in 1942. The number of taxable individuals rose from 3.6
million in 1939 to 42.6 million in 1945 and the revenues from
$2.2 billion to $35.1 billion.\22\ Legislation also
substantially increased the corporate tax rate from a top rate
of 19 percent to 40 percent. The changes in taxes, unlike those
in World War I, were barely drawn back after the end of the
war. By 1946, singles and small families below the poverty
level paid income taxes. Individual income tax rates ranged
from 19 percent to 86 percent.\23\
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\22\ Brownlee, Federal Taxation in America, p. 115.
\23\ See Gravelle and Gravelle, ``Taxing Poor Families,'' p. 43 for
exemptions and poverty levels by family size.
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Post-World War II to the 1986 Tax Reform Act
Brownlee views the World War II changes as the last of the
five major tax regimes.\24\ (Legislation since that time he
categorizes as falling within a widely imposed income tax
regime.) The period since World War II, as suggested by Witte
as well, has also been characterized largely by incremental
changes, including a long period when additional revenues from
inflation and bracket creep were offset with tax reductions or
the expansion of tax preferences. Witte argues that ``the
legislative process seems effectively to filter out most
proposals for radical changes in structure.'' \25\
---------------------------------------------------------------------------
\24\ Other historical analyses accept a broader scope for events
and external forces that caused disruptions in the ``normal''
environment. They cite the adoption of property taxes (and
consideration of an income tax) during the undeclared naval war with
France and the War of 1812. (The Mexican War was fought during an era
of robust growth and, thus, robust tariff revenues.) The Nation also
adopted an income tax in 1894, during the depression in the aftermath
of the panic of 1893, but it was almost immediately found
unconstitutional by the Supreme Court.
\25\ Witte, The Politics and Development of the Federal Income Tax,
p. 246.
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Compared to the drama of the first half of the 20th
century, the tax revisions of the next 40 years were modest.
The corporate rate was increased after World War II and then
hovered at around 50 percent during most of this period until
1986. Very high top individual rates (reaching 91 percent in
the late 1950s and early 1960s) were in place. As inflation
accumulated and accelerated, bracket creep from the graduated
income tax yielded a fiscal dividend that was used for rate
reduction (as in 1964 when individual tax rates of 20 percent
to 91 percent were reduced to 14 percent to 70 percent).
Responses to the fiscal dividend often resulted in bestowing
tax benefits of various types to serve private interests.
Between World War II and 1986, individual income taxes were
about 8 percent of gross domestic product (GDP), and that is
where they stand currently. Bracket creep was offset by tax
cuts. Professor Sheldon Pollock characterized this process of
adjusting to bracket creep as ``pluralistic incrementalism.''
Because lawmakers act in multiple roles (representing
constituents, party, and national policy) they can, in this
view, undermine the stability and coherence of the tax
system.\26\ The outcome, he argues, is a growth in tax
preferences or the equivalent of spending through the tax
system, currently referred to as tax expenditures.
---------------------------------------------------------------------------
\26\ Pollock, The Failure of U.S. Tax Policy, p. 267.
---------------------------------------------------------------------------
One example of the presumably unintended consequences of
this uncoordinated and incremental policymaking is that the
cumulative effects of bracket creep, along with long periods
with basic personal exemptions and standard deductions
remaining unchanged, led to a tax eventually being imposed on
those below the poverty level.\27\
---------------------------------------------------------------------------
\27\ Gravelle and Gravelle, ``Taxing Poor Families.''
---------------------------------------------------------------------------
Another consequence was the decline in the importance of
the corporate tax. Bracket creep did not affect corporate
revenues where income is largely taxed at a flat rate.
Nevertheless, corporations were recipients of tax preferences
from the fiscal dividend as well, notably the investment credit
enacted in the 1960s.\28\ At the end of World War II, the
corporate tax ranged from 4 percent to 6 percent of GDP,
eventually declining to around 2 percent (where it stands
today).
---------------------------------------------------------------------------
\28\ The investment credit was first enacted as a permanent
provision, then a temporary one, and then a permanent one again.
---------------------------------------------------------------------------
Witte argues that before the 1980s only one act--the Tax
Reform Act of 1969 (P.L. 91-172)--could be considered tax
reform. He considers the 1982 and 1984 acts as tax reform,
although many of their provisions rolled back items that were
adopted in 1981 (legislation he refers to as anti-tax reform).
All of these, in his view, are dwarfed by TRA86.\29\
---------------------------------------------------------------------------
\29\ Witte, ``The Tax Reform Act of 1986,'' p. 443.
---------------------------------------------------------------------------
Many view TRA86 as the tax legislation that stands out in
the post-World War II era. Also important to note is the
Economic Recovery Tax Act of 1981 (ERTA; P.L. 97-34), which
dramatically altered the policymaking process. It largely ended
bracket creep due to inflation by indexing the rate
structure.\30\ This action terminated, by and large, the era of
easy finance and continual tax cuts. Income taxes could still
rise relative to GDP with real growth and could rise or fall
with income redistribution. However, the effects of inflation
on bracket creep, which were significant in the late 1960s and
1970s, no longer played a major role in influencing tax policy.
---------------------------------------------------------------------------
\30\ The personal exemption was not indexed, although that revision
occurred in TRA86.
---------------------------------------------------------------------------
The most significant changes since the end of World War II,
according to Brownlee, occurred during the Reagan
administration and culminated with TRA86 (in President Reagan's
second term).\31\ In particular, Brownlee asserts that for the
first time since World War II, TRA86 picked losers as well as
winners. He does not perceive the act as a major taxation
regime change, but he does recognize its importance as a
consequential tax law.
---------------------------------------------------------------------------
\31\ History demonstrates that many Presidents find it difficult to
enact consequential legislation in their second terms. TRA86 was an
exception.
---------------------------------------------------------------------------
The Tax Reform Act of 1986
The supporters of tax reform sometimes refer to TRA86 as an
example of how reform might be accomplished. This reform was
not triggered by external crises. Significant budget problems
had arisen as a result of tax cuts and increased spending in
the early 1980s, but TRA86 was not aimed at raising revenue; it
was revenue neutral (at least in the budget horizon).\32\ It
was also not focused on redistribution; it was largely
distributionally neutral.
---------------------------------------------------------------------------
\32\ A number of provisions in the bill had largely transitory
revenue gains, and these provisions were associated with higher incomes
and businesses. Thus TRA86 was not revenue neutral or distributionally
neutral in the long run, although it was nearly so. See Jane G.
Gravelle, ``Equity Effects of the Tax Reform Act of 1986,'' Journal of
Economic Perspectives, vol. 6, no. 1 (winter 1992), pp. 27-44 for a
discussion. This issue was not discussed during consideration of the
act.
---------------------------------------------------------------------------
TRA86 is well known as an achievement of tax reform because
it was so unusual. The introduction by Albert Hunt to the book
chronicling the passage of the act, Showdown at Gucci Gulch,
stated: ``The saga was all the more dramatic because it was
unlikely.'' \33\ The authors of the book, Jeffrey Birnbaum and
Alan Murray, state in the epilogue: ``How did it happen? What
created this legislative miracle that defied all the lessons of
policy science, logic and history?'' \34\ Pollack writes that
TRA86 ``has been widely hailed as . . . the most significant
tax reform legislation in the history of the federal income
tax.'' \35\
---------------------------------------------------------------------------
\33\ Albert Hunt, introduction in Jeffrey H. Birnbaum and Alan S.
Murray, Showdown at Gucci Gulch: Lawyers, Lobbyists, and the Unlikely
Triumph of Tax Reform (New York: Random House, 1987).
\34\ Birnbaum and Murray, Showdown at Gucci Gulch, epilogue.
\35\ Pollack, The Failure of U.S. Tax Policy, p. 100.
---------------------------------------------------------------------------
What did TRA86 do that was so remarkable? In understanding
its achievement, it is important to remind ourselves of the
lessons of history as presented, for example, by Brownlee.
There was no fiscal crisis, no war, no depression to spur the
legislation on, and it raised no revenue. By virtue of doing
so, it had to pick losers to finance the gains of others. There
was some public support for tax reform amid stories of
corporations paying no tax and high-income individuals on
expense accounts and investing in tax shelters. Tax reform
never became, according to Birnbaum and Murray, an important
issue with the public. It did, however, face hordes of special
interests and lobbyists seeking to preserve their preferences.
TRA86 was an anomaly. It was the first time in the then 75-year
history of the modern income tax that external causes did not
prompt major tax reform, and it has not been repeated for
another 28 years.
TRA86's revisions for the individual income tax included
lowering the top marginal tax rate from 50 percent to 28
percent (although there was a 33 percent bubble due to
phaseouts) and flattening the rate structure to two statutory
rates.\36\ It also removed those below the poverty line from
the tax (except for singles), indexed elements of the earned
income credit that had been initially adopted in 1975, and
mitigated the tax burden for lower income families just above
the poverty line by increasing the personal exemption and
standard deduction.\37\
---------------------------------------------------------------------------
\36\ A bubble occurs with tax benefits, such as exemptions or lower
rates, that are phased out. The loss of benefits as income rises is the
same as a tax rate increase during the phaseout period.
\37\ C. Eugene Steuerle, The Tax Decade (Washington, DC: Urban
Institute Press, 1992), pp. 122-126; Gravelle and Gravelle, ``Taxing
Poor Families.''
---------------------------------------------------------------------------
These cuts were paid for by base-broadening provisions that
included eliminating the itemized deductions for consumer
credit and State and local sales taxes, capping the mortgage
interest deduction, converting certain small deductions to
itemized deductions, and adding floors to some itemized
deductions. It eliminated individual retirement accounts
(adopted in 1981) for higher income individuals with employer
pensions. The flatter rate structure also led to eliminating
income averaging and the second-earner deduction. It restricted
tax-exempt State and local private activity bonds to limited
uses and reined in tax shelters by adding limits on deductions
of passive losses. These restrictions on passive losses, along
with taxing capital gains at ordinary rates, were the major
provisions offsetting rate reductions for high-income
individuals.
The changes in corporate (and business) taxes were, in some
ways, more significant. ERTA included more rapid depreciation
methods,\38\ which, combined with investment credits, produced
negative tax rates for investment in equipment. The 1982 act
reversed some of these provisions, but nevertheless, effective
tax rates on equipment were 8 percent prior to TRA86, even
though the statutory tax rate was 46 percent. Structures were
effectively taxed at 34 percent and inventories at 54 percent.
Repealing the investment credit and slowing depreciation
slightly, combined with cutting the corporate tax rate to 34
percent, brought these tax rates much closer together (30
percent, 32 percent, and 41 percent).\39\
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\38\ Depreciation allows the costs of assets that wear out to be
deducted over time; when depreciation is allowed at a faster rate than
the actual loss in value of the asset, a subsidy results that lowers
effective tax rates.
\39\ See estimated tax rates in Jane G. Gravelle, The Economic
Effects of Taxing Capital Income (Cambridge, MA: MIT Press, 1994), p.
54. These rates are effective tax rates on new investment measuring the
estimated share of the rate of return that is paid in taxes as a
function of statutory tax rates, depreciation provisions, and
investment subsidies.
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Witte summarizes the evaluation of the act by tax scholars,
noting that many of them were as enthusiastic as politicians
and reporters. Some, however, feel the historic importance of
the act is overstated. Witte suggests that this view results
largely from comparing the act to what theoretically could be
accomplished, which is an unrealistic standard to judge a
single piece of legislation against.
As Witte describes,\40\ most scholars see TRA86 as an
anomaly or an epiphenomenon in which political and economic
factors intersected to create a unique environment that
permitted tax reform.\41\ One economic factor was revenue
neutrality. As a result of the fiscal deficit and the indexing
of rate brackets, tax reform could not reduce taxes across the
board, as had been the case in prior legislation. These
factors, it is argued, repressed the temptations to add on tax
breaks to a reform bill.\42\
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\40\ This discussion is based on Witte, although Witte cites other
scholars. See discussion in Witte, ``The Tax Reform Act of 1986.''
\41\ Witte describes some alternative ways to view TRA86. One is a
pendulum swing theory: the notion that tax reform was a reaction to
policy moving too far in the other direction, beginning in the late
1970s and followed by ERTA. This view would predict a revival of
pressures to expand tax expenditures. The other view is of TRA as a
policy watershed where the country would embark on a continued path of
tax reform. The brief review of post-1986 history in the next section
suggests that neither of these hypotheses appear to be the case. Some
backpedaling occurred, but it was small and did not affect corporate
and business reforms or tax shelters, nor did the country embark on
further tax reform.
\42\ Two other factors were (1) the agreement that marginal rates
be cut substantially and (2) the desire to reduce taxes for the
majority of individuals, which could be achieved only by increasing
taxes on corporations and base broadening for high-income taxpayers.
The dramatic reductions of corporate tax in ERTA, along with instances
of large firms paying little or no taxes, made an increase in corporate
taxes seem appropriate. (Corporate taxes had already fallen from 5
percent of income in the postwar era to 2 percent; after ERTA, they
were 1.5 percent.) Similarly, ERTA and the growth of tax shelters had
made individual tax expenditures less defensible.
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As for political factors, there is virtually unanimous
agreement that leadership and support by a powerful and popular
President, Ronald Reagan, was crucial.\43\ While there were
earlier congressional proposals (Senator Bill Bradley and
Representative Dick Gephardt produced a proposal in 1982),
these proposals did not gain traction for tax reform until the
President supported these efforts. Hunt, in his introduction to
Showdown at Gucci Gulch, identifies Bradley (as well as Reagan)
as a pivotal figure: ``At every critical juncture Bradley
stepped in to provide an important push; rarely has a
legislator with no formal leadership role or committee
chairmanship played such an instrumental role in a major piece
of legislation.'' \44\ The 1984 report President Reagan
commissioned from Treasury became the basis of negotiations
between Congress and the White House. (In fact, Treasury
produced two reports: Treasury I proposed an outright repeal of
38 of 105 tax expenditures. It was never sent to Congress.
Treasury II was a milder version of Treasury I.) The President
continued to support the basic principles in Treasury I
throughout congressional deliberations.\45\
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\43\ This view is held by Witte and the tax scholars he references.
\44\ Hunt, introduction in Showdown at Gucci Gulch, p. xiv.
\45\ The commissioning of the report was originally motivated by a
concern that the Democrats would appropriate tax reform as an issue in
the Presidential campaign. See Pollack, The Failure of U.S. Tax Policy,
p. 99. Pollack suggests that most Members did not take this initiative
seriously. Some Democratic Members even laughed during the President's
1984 State of the Union speech when he mentioned tax reform. But after
that, tax reform took on a life of its own.
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His support led to a response from Democratic leaders
(Speaker Tip O'Neill and Ways and Means Chairman Dan
Rostenkowski), who were not willing to concede the tax reform
issue to the White House but embraced it. President Reagan
reportedly also helped persuade 54 House Republicans to change
their votes, permitting the bill to be adopted. The views
described by Witte about the importance of the President were
held by not only Witte and other scholars of the day--including
Birnbaum and Murray--but also present-day tax historians.
Historian Joseph Thorndike, for example, states that ``tax
reform is the sort of heavy political lift that really does
depend on presidential leadership. White House support is
necessary, even if it's not sufficient.'' \46\
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\46\ See Joseph Thorndike, ``The Last Time Everyone Gave Up on Tax
Reform, It Actually Happened,'' Forbes, March 13, 2014, http://
www.forbes.com/sites/taxanalysts/2014/03/13/the-last-time-everyone-
gave-up-on-tax-reform-it-actually-happened/.
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Witte also cites the political approach at the Treasury
Department of aiming for a comprehensive plan rather than a
listing of loopholes. He also notes that many observers point
to leadership in the White House, Treasury, and Congress,
including the tax experts at Treasury and the chairmen of the
tax writing committees, Representative Rostenkowski and Senator
Bob Packwood. In particular, observers cite Packwood's support
for tax reform when his committee was moving the other way.
At the conclusion of his article, Witte identifies three
particularly important factors that facilitate tax reform. The
first is the support of the President, preferably a popular
one, which he considers essential for success. The second is
the development of tax reform in a way that is relatively
insulated from the political process. (The 1984 process was a
more closed and controlled one than had been the case in the
past.) The third is beginning the process with a broad-based
comprehensive package that changes the landscape from
``politics as usual.'' The package, says Witte, must be broad
enough that blocking the reforms and proposing antireform
changes can be deflected by an appeal to collective sacrifice.
Despite these conditions that permitted the Tax Reform Act
of 1986 to succeed, luck appeared to play a role as well.
Birnbaum and Murray chronicle the many points where tax reform
could have been derailed. President Reagan might not have
proposed the tax reform study if he (and his strategist James
Baker) had not feared in 1984 that the Walter Mondale
Presidential campaign would appropriate the issue.\47\ The
reaction by special interests to Treasury I could have
persuaded the President to let the plan die. Tax reform almost
stalled in the Ways and Means Committee when an amendment to
restore a banking tax benefit was adopted. The process
eventually continued with a withdrawal of that amendment but
also an agreement to retain the itemized deduction for State
and local taxes to gain further support in the committee.
Senator Packwood was ready to abandon tax reform after the
Senate Finance Committee began voting to restore preferences;
he reportedly changed his mind after the famous ``two pitcher''
lunch at the Irish Times restaurant.\48\
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\47\ In 1982, a proposal for a broad-based, low-rate tax reform had
been introduced by Senator Bradley and Representative Gephardt, which
was a ready-made plan the Democrats could endorse.
\48\ At that lunch, Senator Packwood and his aide decided to
propose a bold proposal with two rates and a low top rate.
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In sum, tax reform appeared to rest not only on the right
economic and political conditions but also on chance.
Policies Since the 1986 Tax Reform Act
Some backpedaling on TRA86 occurred in the next 28 years,
but it was small and hardly touched the corporate and business
reforms or tax shelters.\49\ Nor has the country embarked on a
continuation of tax reform. Rather, most of the period since
TRA86 has seemed to focus on incremental tax changes but
without the continual revenue gains from inflationary bracket
creep that turned most tax changes into tax cuts.
---------------------------------------------------------------------------
\49\ In 1993 the depreciation period for nonresidential buildings
was increased to pay for exempting realtors from the passive loss
restriction. Also, as noted, the 34 percent corporate tax rate was
increased to 35 percent.
---------------------------------------------------------------------------
In the George H.W. Bush administration, interest focused on
rolling back the higher taxes on capital gains. This focus was
based on arguments not central at the time of TRA86: that the
taxes on additional realizations of gain induced by lower
capital gains tax rates would offset or more than offset the
revenue loss.\50\ Some of the initial empirical estimates by
economists of these realizations responses were very large.
However, as analytical techniques were refined, the estimates
tend to become smaller. Treasury argued that a capital gains
tax cut to 20 percent would raise, not lose, revenue. The Joint
Committee on Taxation began to use large behavioral estimates
in its revenue estimates, although they were not large enough
to raise revenue but only not to lose much.\51\ In 1990, in a
bill that raised revenue, the 33 percent bubble introduced in
TRA86 was eliminated and the 15 percent, 33 percent, 28 percent
marginal rate structure was replaced by a 15 percent, 28
percent, 31 percent structure. Capital gains, however, were
capped at 28 percent.
---------------------------------------------------------------------------
\50\ ERTA had been partly fueled by supply-side arguments that
claimed that induced economic growth would offset much of the tax cut.
This realizations argument was a more narrow type of supply-side
argument that could be more easily justified.
\51\ See CRS Report R41364, Capital Gains Tax Options: Behavioral
Responses and Revenues, by Jane G. Gravelle, for a discussion of
current empirical evidence.
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In 1993, during the Clinton administration, continued
concerns about the deficit resulted in legislation that
increased tax revenues. These revenues were obtained largely
through rate increases. Two tax rates of 36 percent and 39.6
percent were added, and the corporate rate was raised to 35
percent.
Some reversals happened in 1997, but they were delayed and
small and did not touch TRA86's corporate and business reforms
or tax shelters. The 1997 changes resulted in part from a
promise by the President to cut taxes but also because
Republicans controlled Congress, and they advocated tax cuts. A
rapidly growing economy that pushed up income tax revenues
facilitated a tax cut that was the largest since 1981 (although
it was much smaller: only 0.3 percent of GDP). The 1997
legislation cut the capital gains tax to 20 percent, increased
the income limits on individual retirement accounts, and
introduced the child credit and tuition tax credits.
Robust economic growth and shifts in the income
distribution led to higher income tax revenues. (Individual
income tax receipts rose to 9.9 percent of GDP in 2000.) This
growth in revenues resulted in another round of tax cuts, this
time in 2001 under the George W. Bush administration. Cuts were
largely in the form of rate reductions at the top. The top
income tax rate was reduced to 35 percent, and the next three
highest tax rates were cut by 3 percentage points. The tax cut
(which was about 1.5 percent of GDP, compared to ERTA, which
was about 4 percent of GDP) \52\ was phased in and was to
sunset after 10 years to avoid the Byrd rule in the Senate.
This budget rule, named after Senator Robert C. Byrd of West
Virginia, allowed a point of order against any legislation that
increased the deficit outside the 10-year budget window.
Another tax cut, reducing tax rates on capital gains and
dividends, was enacted in 2003. The individual income tax
slipped to 6.7 percent of GDP by 2004, although it recovered,
standing at 7.8 percent in 2007.\53\
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\52\ C. Eugene Steuerle, ``The 2001 Tax Legislation from a Long
Term Perspective,'' National Tax Journal, vol. 44 (September 2001), pp.
427-432.
\53\ President Bush also commissioned a study of tax reform, which
was released in 2005. It contained a detailed blueprint, but no further
action was taken. See the President's Advisory Commission on Tax
Reform, Simple, Fair, and Pro-Growth: Proposals to Fix America's Tax
System, 2005, http://govinfo.library.unt.edu/taxreformpanel/final-
report/index.html.
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In 2007, a developing financial crisis and subsequent
recession led to the enactment of a series of largely temporary
tax cuts to combat the recession, including one under the Bush
administration in 2008 and one under the Obama administration
in 2009. Tax reform as an issue did not become a significant
part of the legislative agenda until 2010. It remained an
important topic of debate along with issues surrounding the
slow recovery, the expiring tax cuts, and concerns about the
deficit and future growth of the debt.
Tax Reform Developments, 2009-2014
The 111th Congress (2009-2010)
During the first 2 years of the Obama administration,
Democrats controlled Congress. There was no action on tax
reform as Congress and the administration focused on enacting
the President's health overhaul plan and antirecession stimulus
proposals and dealing with the 2010 expiration of the Bush tax
cuts (ultimately resolved with a 2-year extension). The
President, however, included specific revenue-raising
provisions in his first and successive budget outlines. Those
provisions largely concerned corporations, mainly focusing on
provisions to increase the taxation of foreign source income
and income from fossil fuel production. He has also proposed
some individual provisions, including limiting the value of
itemized deductions for high-income taxpayers and taxing
certain earnings of investment fund managers (``carried
interest'') as ordinary income rather than as capital
gains.\54\
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\54\ The Treasury ``Green Books'' that outline tax proposals in the
Presidents' budgets are at http://www.treasury.gov/resource-center/tax-
policy/Pages/general_explanation.aspx.
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The President also commissioned a report on tax options
relating to simplification, compliance, and corporate taxation
in March 2009, originally to be issued in December 2009. This
report was delayed and eventually issued in August 2010. This
report was also prepared by a commission, not Treasury, and was
not a tax reform proposal but a review of options.\55\ It
received relatively little attention.
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\55\ The President's Economic Recovery Advisory Board, The Report
on Tax Reform Options: Simplification, Compliance, and Corporate
Taxation, August 2010, http://www.whitehouse.gov/sites/default/files/
microsites/PERAB_Tax_Reform_Report.pdf.
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The Fiscal Commission, established by Executive Order 13531
in February 2010, was a bipartisan commission composed of 18
members, mostly from Congress but also private individuals,
including the cochairmen.\56\ Its objective was to deal with
the deficit. At the end of 2010, its report was issued,
although without enough of a majority to recommend its
proposals. The report was not a detailed tax reform proposal
(as was Treasury I). It included a few specific tax changes as
illustrations with a general proposal to eliminate tax
expenditures and lower rates (but with rates raised as tax
expenditures were retained). It proposed to raise revenues.
This lack of specifics has been characteristic of much of the
current tax reform drive.
---------------------------------------------------------------------------
\56\ See http://www.fiscalcommission.gov/ for information on
membership. See National Fiscal Commission on Fiscal Responsibility and
Reform, The Moment of Truth, The White House, December 2010, http://
www.fiscalcommission.gov/sites/fiscalcommission.gov/files/documents/The
MomentofTruth12_1_2010.pdf.
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The 112th Congress (2011-2012)
Republicans took control of the House in the aftermath of
the 2010 elections. Tax policy was still largely focused on
policies to help the economy recover from the recession and
resolution of the Bush tax cuts, slated to expire at the end of
2012.
President Obama called for an overhaul of the tax code for
both individuals and corporations in his 2011 State of the
Union Address, but he provided no specifics. The House-passed
budget resolution under Budget Committee Chairman Paul Ryan
proposed a revenue-neutral tax reform with the top corporate
and individual tax rates set at 25 percent; \57\ these
proposals, which included no specific base-broadening
provisions, continued to be included in subsequent House-passed
budget resolutions. Both Ways and Means Chairman Dave Camp and
Senate Finance Committee Chairman Max Baucus held hearings on a
number of tax reform topics.
---------------------------------------------------------------------------
\57\ U.S. Congress, House Committee on the Budget, The Path to
Prosperity: Fiscal Year 2012 Budget Resolution, http://
budget.house.gov/uploadedfiles/pathtoprosperityfy2012.pdf.
---------------------------------------------------------------------------
In October 2011, Chairman Camp released a proposal for a 25
percent corporate tax rate. His release also included a
detailed draft proposal to establish a territorial corporate
tax system--that is, to exclude active income of foreign
subsidiaries from U.S. taxes.\58\ Much of the detail of the
plan was to craft options to limit artificial profit shifting
(i.e., moving profits abroad that should be reported as U.S.
income). The plan and the options were specific and in draft
legislative language. The draft included no corporate base-
broadening proposals.
---------------------------------------------------------------------------
\58\ U.S. Congress, House Committee on Ways and Means, ``Camp
Releases International Tax Reform Discussion Draft,'' press release,
October 26, 2011, http://waysandmeans.house.gov/news/
documentsingle.aspx?DocumentID=266168. Current law taxes income of
foreign subsidiaries of U.S. firms, but the tax is deferred until the
income is paid to the parent as a dividend. A territorial tax exempts
this income.
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In 2012, the President released a report outlining a
framework for corporate tax reform.\59\ Although this report
was not a fully detailed proposal, it contained a number of
specific base-broadening provisions that had generally appeared
in the President's annual budget submissions to Congress. The
President's report also proposed other corporate reforms in
general terms, such as less generous depreciation and
restrictions on interest deductions. In the international area,
it proposed a minimum tax on each foreign subsidiary, although
it did not specify at what level the tax was to be set. It
proposed to lower the corporate tax to 28 percent and to 25
percent for manufacturing.
---------------------------------------------------------------------------
\59\ The President's Framework for Business Tax Reform: A Joint
Report by The White House and the Department of the Treasury, February
2010, http://www.treasury.gov/resource-center/tax-policy/Documents/The-
Presidents-Framework-for-Business-Tax-Reform-02-22-2012.pdf.
---------------------------------------------------------------------------
The Republican majority in the House was concerned with the
deficit, which had grown significantly during the recession. At
the end of 2011, Congress set up a ``super committee'' to deal
with budget gridlock. The committee did not deal with tax
reform.
The House budget resolution in 2012 continued to call for
revenue-neutral tax reform with top rates of 25 percent. It
added more details: only two rates, a repeal of the alternative
minimum tax, and a territorial tax system for corporations.\60\
---------------------------------------------------------------------------
\60\ U.S. Congress, House Committee on the Budget, The Path to
Prosperity: Fiscal Year 2013 Budget Resolution, http://
budget.house.gov/uploadedfiles/pathtoprosperity2013.pdf.
---------------------------------------------------------------------------
Most 2012 tax policy was preoccupied with the expiration of
a number of tax and spending provisions, including the Bush tax
cuts and some antirecession stimulus provisions. President
Obama supported making the Bush tax cuts permanent except for
incomes over $250,000. The cuts were eventually made permanent
but with retention of the higher top rates on very high-income
individuals (married couples with taxable income of $450,000 or
more). There were also tax reform proposals by the Presidential
candidates, including the Republican nominee, Mitt Romney. His
plan, like many other proposals, did not indicate specific
base-broadening provisions. Other than continued hearings, no
further congressional developments in tax reform occurred.
The 113th Congress (2013-2014)
Much more activity on tax reform began in 2013. Early in
2013, Ways and Means Committee Chairman Camp issued two more
discussion drafts on financial products and small business. He
also announced the formation of 11 bipartisan working groups to
address different aspects of tax reform.\61\ The Senate Finance
Committee also set up working groups. Chairman Baucus and
Ranking Member Orrin Hatch released a number of option papers.
Subsequently, Baucus released staff discussion drafts on
international taxation, tax administration, cost recovery and
tax accounting, and energy taxation in November and
December.\62\ All but tax administration related to the
corporate (or business) tax. The international taxation
provisions proposed a current tax on foreign source income at a
lower rate, similar to the proposals suggested in the Obama
plan and likely to raise revenue from foreign source income.
The intention of Chairman Baucus was to release additional
discussion drafts.
---------------------------------------------------------------------------
\61\ See a list of actions taken by the Ways and Means Committee at
http://waysandmeans. house.gov/taxreform/.
\62\ See http://www.finance.senate.gov/newsroom/chairman/release/
?id=4f681789-343a-401c-a752-516028838040.
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The House-passed budget resolution continued to support
revenue-neutral tax reform and a maximum corporate rate of 25
percent. The budget resolution no longer specified an
individual top tax rate but suggested 25 percent as a target.
The Senate-passed budget resolution for FY2014 specified
revenue increases from taxes.
Camp had indicated plans to mark up a bill in 2013 but
ultimately did not.\63\ In February 2014, Camp released a draft
of the bill. It appears unlikely that further action on tax
reform will occur this year. For the individual tax, the
proposal includes a number of provisions that tax reform
analysts have advocated, such as eliminating personal
exemptions, increasing the standard deduction and child
credits, consolidating education benefits, and simplifying the
capital gains and dividends tax preference. Camp's draft also
reduces the earned income credit, increasing taxes on low
income taxpayers in some cases. His proposal would also
significantly reduce the number of itemizers by increasing the
standard deduction, eliminating the deduction for State and
local taxes, and curtailing or eliminating other itemized
deductions. Chairman Camp's proposal also eliminates
alternative minimum taxes, at a considerable revenue cost. The
draft bill creates three rates: two regular rates of 10 percent
and 25 percent and a surtax of 10 percentage points on modified
income, leading to a top overall rate of 35 percent. The plan
has a dramatic change in the corporate tax, eliminating the
majority of tax expenditures while moving to a territorial
system (with antiabuse provisions) and lowering the tax rate to
25 percent.
---------------------------------------------------------------------------
\63\ There was speculation about the cause of the delay, with
various people blaming the inability to garner support in the
committee, loss of time due to the government shutdown, and lack of a
go-ahead from the leadership. See Lindsey McPherson, ``Camp Hints at
Tax Reform Delay as Baucus Weighs Options,'' Tax Notes, November 18,
2013, pp. 699-700.
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Senator Baucus, having announced in April 2013 that he
would not run for reelection, was nominated to be Ambassador to
China in November 2013 and resigned from the Senate on February
6, 2014. The new chairman, Senator Ron Wyden, has a history of
interest in tax reform. He has reportedly wondered whether some
of the ideas in his tax reform proposal, introduced as S. 727
in the previous Congress, could serve as the basis of tax
reform efforts.\64\ S. 727 was cosponsored with Senators Dan
Coats and Mark Begich and has some similarities and some
differences with the Camp proposal. Wyden's bill had a top
individual rate of 35 percent and a top rate of 24 percent for
corporations. Like the Camp proposal, S. 727 was designed to be
revenue and distributionally neutral.\65\ It also would have
increased the standard deductions, but its major revenue
raisers are from exclusions rather than itemized deductions.
For the corporate tax, some revenue raisers are the same (such
as slowing depreciation). The bill also would have disallowed
deductions for the portion of interest reflecting inflation. A
major difference with the Camp proposal is the ending of
deferral so that income earned in foreign subsidiaries of U.S.
firms would be taxed. This change, which is a major revenue-
raising provision, stands in the opposite direction of Camp's
territorial tax.
---------------------------------------------------------------------------
\64\ Lindsey McPherson, ``Wyden Previews Finance Committee's Tax
Reform Plan,'' Tax Notes, April 7, 2014, p. 31.
\65\ The revenue estimates for the proposal were prepared in 2010
for the previous year's version. At that time the Bush tax cuts were
still temporary, and it lost revenue compared to the official baseline
(which assumed expiration) but raised revenue compared to a current
policy baseline assuming tax provisions would be made permanent. It
appears roughly revenue neutral. The estimates are on Senator Wyden's
Web page at http://www.wyden.senate.gov/download/?id=1ba9073f-9ee8-
4f8b-a2e3-2b70ebc96d35&download=1.
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No further action on tax reform has occurred in this
Congress. Instead, the tax writing committees focused on the
tax extenders, a large group of tax provisions that regularly
expire. In addition, on June 11, 2014, the Senate considered S.
2432, sponsored by Senator Elizabeth Warren, which called for a
minimum tax on incomes of $1 million or more. This minimum tax,
with a rate of 30 percent, would apply to a broader base. The
bill failed on a procedural vote (56 to 38).
Beginning in the spring of 2014, Congress' attention turned
to inversions, a growing tax avoidance practice employed by
various businesses. The announcement by a number of U.S. firms
of attempts or intentions to invert (i.e., move their
headquarters abroad) by acquiring smaller foreign firms led to
calls for legislation. While some argued that legislation
tailored to this inversion problem was needed, others indicated
that corporate reform to make the United States a more
attractive location should be considered. The inversion problem
increased Member and public interest in tax reform, or at least
in corporate tax reform.
The future of tax reform will be affected by changes in the
leadership of each Chamber. Camp, who is term-limited in his
chairmanship, has announced he will not run for the 114th
Congress. His replacement as chairman is uncertain. There is
speculation that Ryan, now chairman of the Budget Committee and
a consistent supporter of tax reform, might become chairman if
the Republicans retain the majority in the House.\66\
Similarly, Senator Wyden's tenure as chairman of the Senate
Finance Committee will depend on the outcome of the 2014 Senate
elections.
---------------------------------------------------------------------------
\66\ Brian Faler, ``Paul Ryan Wants House Tax-Writing Gavel in
2015,'' Politico, December 17, 2013, http://www.politico.com/story/
2013/12/paul-ryan-ways-and-means-committee-2014-101256. html. Ryan is
currently the third-ranking member on the committee.
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Comparison of the Current Tax Reform Terrain to 1986
Numerous political factors are considered to influence the
success or failure of tax reform proposals. Professor Witte
stressed three: (1) Presidential leadership, (2) some degree of
insulation from political pressures, and (3) starting the tax
reform debate with a comprehensive plan. In addition,
congressional leadership and messaging are also critical to the
fate of tax reform. As the following discussion suggests, these
and other factors were present in 1986 but currently are not.
In addition, the possibilities for base broadening are more
limited today than they were in 1986, making the achievement of
targeted lower tax rates virtually impossible.
Presidential Support
Many observers agree that the most important factor in the
success of TRA86 was the active leadership of President Reagan.
While President Obama has supported tax reform in principle, he
has not proposed a plan for individual income tax reform.
However, he appears to support using tax increases on high-
income individuals for additional revenue. For business tax
reform, he has some specific proposals, but many base-
broadening provisions have not been spelled out, and cost
estimates have not been provided. President Obama does not
appear to consider tax reform a priority, and this factor alone
would suggest to many tax historians that the prospects for tax
reform in the 114th Congress seem murky at best.
Development of a Proposal Insulated from Political Pressure
The initial development of a comprehensive proposal
relatively insulated from political pressure may contribute to
eventual enactment of tax reform in some form. Noteworthy is
that the path to tax reform has always occurred in Congress
without Presidential involvement. In the House, Camp's 2014
proposal appeared to have considerable political input from
hearings, invited comments on the territorial tax draft, and
contacts with the working groups. At the same time, it is not
clear how much these factors influenced legislation, although
members of the working groups cite a number of provisions in
Camp's bill influenced by them, such as keeping the tax
preferences for oil and gas.\67\ Senate Finance Chairman Baucus
did not produce a draft bill. Instead, his staff prepared a
limited number of discussion drafts, also a process that
invites political input. In short, the process in 2014 was
different from that which produced the first draft of TRA86,
which was prepared by technical experts away from pressure of
lobbyists.
---------------------------------------------------------------------------
\67\ Lindsey McPherson, ``Ways and Means Working Groups Influenced
Portions of Camp Tax Reform Draft,'' Tax Notes Today, March 18, 2014.
---------------------------------------------------------------------------
Initiation of a Broad Tax Proposal
A factor that contributed to TRA86's success was beginning
the process with a comprehensive proposal that changed politics
as usual (by suggesting collective sacrifice). The Camp draft
is broad, although it is much narrower than President Reagan's
Treasury I. It is not clear whether the guiding principle of
the Camp draft was to improve the tax code or find revenue-
raising provisions to permit predetermined conditions set in
the House-passed budget resolution. Experts suggest that the
budget resolution's provisions--revenue neutrality, a top tax
rate of 25 percent, repeal of the alternative minimum tax, and
a territorial tax--are almost impossible to comply with.\68\
---------------------------------------------------------------------------
\68\ See subsequent discussion of limitations on base-broadening
provisions.
---------------------------------------------------------------------------
Leadership in Congress
There is little doubt that leadership in Congress is
critical to the fate of major tax reform measures. Recall the
key roles in 1986 of Members such as Dan Rostenkowski, Bob
Packwood, and Bill Bradley. It seems clear that Camp was a
dedicated tax reformer who made the issue a top priority. He
began working on tax reform in his 1st year as chairman by
tackling the complex process of designing a territorial tax.
Ultimately, he produced, with the aid of tax experts at the
Joint Committee on Taxation and his own people, what was seen
as impressive and detailed draft legislation. Yet he did not
succeed in getting it to or through his committee. His
counterpart in the Senate, Chairman Baucus, got a later start,
with work beginning in 2013, but he had already announced in
April that he would not run for reelection. Senator Baucus'
early departure from the Senate as he was nominated for
Ambassador to China basically ended his tax reform effort.
However, his staff discussion papers offer some insight into
what corporate revisions the Democrats might be willing to
accept. The new Finance Committee chairman, Senator Wyden,
expressed support for tax reform as he focused on an immediate
issue when he became chair: the expiring tax provisions (or
``extenders'').
As a term-limited chairman, Camp has drawn the admiration
of many observers for providing Members with a tax reform
blueprint. Term limits mean that chairmen do not have the power
they once had. One reporter writes: ``There was a time when any
proposal by the Ways and Means Committee chairman would be
viewed as a blueprint for legislation that would most likely
become law. In those days, chairmen sometimes seemed to serve
forever . . . . Next year, under the rules of the House
Republican Caucus, he [Camp] will have to step down after four
years as chairman.'' \69\
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\69\ Floyd Norris, ``Republican's Tax Plan Awkwardly Aims at
Rich,'' New York Times, March 6, 2014, at http://www.nytimes.com/2014/
03/07/business/economy/from-an-unexpected-source-a-tax-proposal-that-
targets-the-rich.html.
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A key difference from 1986 is that party leaders in today's
House and Senate confront an array of difficulties that may
limit their ability to back major tax reform. Compared to 1986,
today the two parties are sharply divided in each Chamber. It
is simply more difficult today compared to 1986 for House and
Senate leaders to mobilize winning coalitions on consequential
legislation.
In 1986, many Members in both parties and Chambers
supported tax reform. House Speaker Tip O'Neill was one of
Rostenkowski's strongest supporters.\70\ Senate Majority Leader
Robert Dole sat on the Finance Committee (and was a former
chairman). As with many Finance members, he was skeptical of
the prospects for tax reform. But he was involved in the
process and embraced Packwood's new two-rate plan.\71\
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\70\ Birnbaum and Murray, Showdown at Gucci Gulch, p. 109.
\71\ Ibid., pp. 5, 222-223.
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In assessing today's prospects for tax reform, one reporter
writes, ``The Camp proposal seems unlikely to go anywhere, in
no small part because the House Republican leadership has gone
out of its way to distance itself from the proposal, praising
Mr. Camp for his diligence and calling it worthy of
consideration but not getting close to an endorsement.'' \72\
Another writes that ``when Baucus and Hatch released a Dear
Colleague letter noting their plans to take a `clean slate'
approach to rewriting the tax code and soliciting ideas,
[Senate Majority Leader Harry] Reid said he didn't even read
the letter.'' \73\
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\72\ Norris, ``Republican's Tax Plan Awkwardly Aims at Rich.''
\73\ Lindsey McPherson, ``What Wyden Can Learn from Baucus's
Tenure,'' Tax Notes, March 3, 2014, p. 915.
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Messaging
Ronald Reagan's statement in his 1984 State of the Union
Message proposing a tax reform plan spoke generally of
fairness, simplicity, and incentives to growth. Messages
associated with the contemporary efforts do not have such broad
appeal. The Fiscal Commission, which proposed to use part of
the base-broadening provisions to offset the deficit, was not
primarily focused on tax reform and did not specify provisions.
The first message on tax reform by the newly elected (in 2010)
House Republicans--the only group to have actually achieved a
tax reform plan (excluding Senator Wyden's independent efforts
in years past)--was in the FY2012 budget resolution, titled
``Pro-Growth Tax Reform.'' It went on to reference simplicity
and fairness as goals for tax reform while setting the top
rates of the individual and corporate tax to 25 percent. The
FY2013 budget resolution recommended two rates, 10 percent and
25 percent, and added repeal of the alternative minimum tax (a
benefit for high-income families), and a territorial tax (a
benefit for multinational firms). A tax reform plan that
focuses on lower tax rates for high-income individuals and
corporations, particularly multinational corporations, may send
a message to the public with narrow appeal.
These messages are different from the broad proposal of
President Reagan, which outlined general principles. The
contrast in messages was pointed out by Mark Weinberg, a tax
expert with experience in the executive branch and on Capitol
Hill. He stated that the tax reform effort in 1986 ``was driven
in large part as simplification, and it was driven in large
part by trying to get more fairness into the system.'' He was
also reported to say that today tax reform is driven by
companies concerned about global competitiveness and by
politicians who want to raise more revenue to help reduce the
Nation's debt.\74\
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\74\ Amy S. Elliott, ``Mundaca Casts Doubt on Quick Passage of
Corporate Tax Reform,'' Tax Notes, October 17, 2011, p 272.
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There is certainly evidence that corporate tax concerns
have taken priority over individual ones. President Obama has
focused on corporate reform. A driving force for reform was the
multinational corporations (especially in the pharmaceutical,
high-tech, and financial industries). They have large amounts
of income earned abroad and in tax haven jurisdictions abroad
that they cannot return (or repatriate) without paying a 35
percent U.S. tax. They first lobbied for a repatriation holiday
with low taxes, but as evidence accrued that an earlier holiday
had not led to additional investment, a stand-alone holiday
became increasingly unlikely. Then efforts turned to a
corporate tax reform that would lower rates, introduce a
territorial tax so this issue would not occur in the future,
and couple both with a lower tax rate on existing accumulated
earnings.\75\ These are all features of the Camp draft.
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\75\ See CRS Report R40178, Tax Cuts on Repatriation Earnings as
Economic Stimulus: An Economic Analysis, by Donald J. Marples and Jane
G. Gravelle and CRS Report RL34229, Corporate Tax Reform: Issues for
Congress, by Jane G. Gravelle, for a discussion of these events.
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Views on taxation of corporations differ, especially for
multinational corporations. As noted during the passage of the
Revenue Act of 1916, many asked: Are corporations engines of
growth or predators? Currently, some argue that corporations
need lower tax rates to attract foreign capital or to be
competitive abroad. Others are concerned about firms that pay
little or no tax because they have shifted profits abroad into
tax havens. Firms such as Pfizer and Walgreens considering
shifting their headquarters abroad (inversion) to avoid U.S.
tax was seen, by some, as a reason to pursue more generous
corporate tax rules and by others to adopt targeted legislation
to prevent these activities.
More Limited Potential Base-Broadening Provisions
In addition to political factors that differ from 1986, the
current tax reform effort also faces a much more difficult
environment in a technical sense than was the case in 1986. One
could argue that 1986 already picked the ``low hanging fruit,''
especially with respect to corporate tax reform. The
elimination of the investment credit and a small change in
depreciation in TRA86 were enough to finance most of the 12
percentage point reduction in the corporate rate (from 46
percent to 34 percent). By contrast, eliminating accelerated
depreciation for the corporate sector would permit a permanent
reduction of 2 to 3 percentage points in the long run.
Eliminating every tax expenditure (except deferral of foreign
source income) would permit roughly a 5 percentage point
reduction in a long-run revenue-neutral change.\76\
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\76\ These calculations are in CRS Report RL34229, Corporate Tax
Reform: Issues for Congress, by Jane G. Gravelle.
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On the individual side, two major provisions that offset
the revenue loss from rate cuts for high-income individuals are
not available: hikes in capital gains tax rates and
restrictions on tax shelters. Although capital gains tax rates
are currently lower than ordinary rates, scoring conventions
that assume a tax increase will lead to a large contraction in
the sales of assets and resulting gains mean that relatively
little revenue would be projected to be raised from increasing
capital gains tax rates. Many supporters of tax reform are
unlikely to be interested in increasing tax rates on the return
to savings and investment (such as capital gains and
dividends), which constitute about one-third of tax
expenditures. Many other provisions are problematic as base-
broadening provisions on a variety of grounds but largely
because they are popular with a broad swath of the middle
class.\77\
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\77\ See CRS Report R42435, The Challenge of Individual Income Tax
Reform: An Economic Analysis of Tax Base Broadening, by Jane G.
Gravelle and Thomas L. Hungerford for a review of individual income tax
expenditures. See also Michael J. Graetz, ``The Tax Reform Road Not
Taken,'' National Tax Journal, vol. 67, no. 2 (June 2014), pp. 419-440,
which discusses the inability of possible base-broadening provisions to
allow significant rate reductions.
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The Camp plan--the only fully specified tax reform proposal
of the 113th Congress--reflects the struggle to find a revenue-
neutral plan that allows lowering the top tax rates for
individuals and corporations to 25 percent (along with other
restrictions that eventually appeared in the budget resolution,
such as eliminating the alternative minimum tax and moving to a
territorial tax). Certain aspects of the proposal illustrate
the difficulty in achieving revenue neutrality with these
goals: non-income tax revenue-raising provisions, the phase-in
of revenue-losing provisions over time, revenue gains from
transitory provisions, bubbles and surtaxes that raise marginal
effective rates (for example, a 10 percentage point surtax on
high-income taxpayers that raises the top rate from 25 percent
to 35 percent), and the presence of revenue raisers that would
probably not pass the test of good policy.\78\ There are many
other provisions that may not survive the political process,
such as the repeal of the itemized deduction for State and
local taxes, a centerpiece of the individual reform plan.
Estimates suggest that the plan loses revenue beyond the budget
horizon (in the steady state): around 4.5 percent for the
corporate income tax and more than 4 percent for the individual
income tax.\79\
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\78\ These issues are discussed in a variety of sources: Leonard
Burman, ``Hidden Taxes in the Camp Proposal,'' February 27, 2014,
http://taxvox.taxpolicycenter.org/2014/02/27/hidden-taxes-in-the-camp-
proposal/; Robert S. McIntyre, ``Camp Is Hiding the True Effects of His
Tax Plan,'' Tax Notes, April 27, 2014, pp. 91-93, who calculates the
effects for the second decade of the Camp plan, finding an average of
$170 billion in losses per year (which would be roughly at 2028 levels
of income); Joseph Rosenberg, ``How Does Dave Camp Pay for Individual
Tax Cuts? By Raising Revenue from Corporations,'' Urban-Brookings Tax
Policy Center, February 27, 2014, http://taxvox.taxpolicycenter.org/
2014/02/27/how-does-dave-camp-pay-for-individual-tax-cuts-by-raising-
revenue-from-corporations/; Chye-Ching Huang, ``Camp Tax Reform Plan
Likely Means Bigger Deficits After First Decade,'' Citizens for Budget
Policies and Priorities, February 26, 2014, http://
www.offthechartsblog.org/camp-tax-reform-plan-likely-means-bigger-
deficits-after-first- decade/; Committee for a Responsible Federal
Budget, ``Revenue Impacts of Camp's Tax Reform Proposal,'' February 26,
2014, http://crfb.org/blogs/revenue-impacts-camps-tax-reform-proposal;
statement of John S. Buckley in U.S. Congress, Senate Committee on the
Budget, Supporting Broad-Based Economic Growth and Fiscal
Responsibility Through a Fairer Tax Code, April 8, 2014, http://
www.budget.senate.gov/democratic/public/index.cfm/hearings?ID=d7254a33-
dbd4-44c1-9fcc-7ea85f803f5e, which discusses the transitory effects of
a number of business provisions. Examples of provisions that do not
appear to pass the test for good policy are disallowing deductions of
catastrophic medical expenses or personal casualty losses.
\79\ The steady state occurs when all the transitional effects of
changes have been completed and revenue relative to GDP has become
constant. The revenue estimates for the Camp draft do not report
corporate and noncorporate revenues separately. The estimate for the
long-run steady-state losses relies on fully phased-in provisions and
adjusts them for transitory effects. Noncorporate and corporate
allocations and transitory effects were determined by comparing the
revenue estimates with the tax expenditure estimates, which provide
separate data and a steady-state estimate. Provisions that produce
transitory effects include accelerated depreciation, capitalizing
research and experimentation and advertising expenses, transitioning
away from ``last in, first out,'' a one-time tax on existing
accumulated foreign earnings, and requiring Roth IRAs and elective
deferrals rather than traditional plans. Data on historical collections
can be found in Congressional Budget Office, An Update to the Budget
and Economic Outlook: 2014 to 2024, August 2014 release, at http://
www.cbo.gov/publication/45249. Data on future collections is from
Congressional Budget Office, The Economic and Budget Outlook, February
2014, at http://www.cbo.gov/publication/45010. Data on the revenue
estimates of the Camp proposal and tax expenditures are from the Joint
Committee on Taxation, ``Estimated Revenue Effects of the `Tax Reform
Act of 2014,' '' February 26, 2014, JCX-20-14 and ``Estimates of
Federal Tax Expenditures for Fiscal Years 2012-2017,'' JCS-1-13,
February 1, 2013. JCT documents can be found at www.jct.gov. The 4.2
percent calculation is understated because it treats timing effects
associated with retirement accounts as having no effect when in fact
they should lose revenue in the future. At 2023 income levels, these
losses amount to $22 billion for corporations and at least $122 billion
for individuals.
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Tax Reform Going Forward
Tax reform is extremely difficult. Historically, major tax
revision requires some external financial crisis or, some would
say, a powerful social movement such as the Progressive
movement at the turn of the 20th century. Otherwise, major tax
reform is unlikely to occur. Rather, tax changes typically
occur incrementally. The exception to that rule--TRA86--is
widely viewed as an anomaly arising from an unusual combination
of conditions.
These conditions do not appear to be present in the current
tax reform drive, making tax reform unlikely. Some of the
barriers to tax reform are due to unrealistic expectations
about how much corporate and individual tax rates could be
reduced; some are due to the absence of Presidential support
and strong endorsement by bipartisan congressional leadership;
some are a consequence of a lack of a broad popular appeal.
There is always the possibility that new chairmen of the
tax writing committees and party leadership could come together
to produce a tax reform plan or that the President or his
successor could make tax reform a priority. The possibilities,
however, were described by tax economist Martin Sullivan:
What magic beans could be planted by a President Romney or
a President Cruz/Paul/Jindal that would change the prospects
for reform? After three years of good-faith effort by a well-
liked, hardworking chair, with all the technical expertise of
the Ways and Means Committee and Joint Committee on Taxation
staffs at his disposal, the best he could come up with was a
plan that has antagonized almost every major business group
inside the Beltway. And after being promised a top rate of 25
percent, we get a thinly veiled top rate of 35 percent packaged
as a 25 percent rate with a 10 percentage point surtax . . . .
There is a chance that the Camp draft, like the plan
released by Treasury in 1984, will serve as a first draft that
determined lawmakers will revise and rework until they succeed
in passing major legislation. But the political situation and
the substance of law make tax reform far more difficult now
than back then. It is much more likely that the next chair of
the Ways and Means Committee--most likely Paul Ryan of
Wisconsin--will see Camp's valiant attempt at reform as clear
evidence that tax reform is a thankless and impossible
task.\80\
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\80\ Martin Sullivan, ``The Beginning of the End of Tax Reform,''
Forbes, http://www.forbes.com/sites/taxanalysts/2014/02/28/the-
beginning-of-the-end-of-tax-reform/2/.
It is possible that corporate tax reform could be
considered separately to address the multiple concerns both
parties have with the corporate tax in a global economy.
President Obama has indicated interest in this area, and there
may be some common ground for both Chambers and parties to
reach consensus. But until expectations about rates meet with
reality, broad tax reform seems impossible not just as a
political matter but as a technical matter.