Understanding Congress: Recent Episodes
Kevin Kosar
Congress is the least liked and perhaps least understood part of government. But it’s vital to our constitutional government. Congress is the only branch equipped to work through our diverse nation’s disagreements and decide on the law. To better understand the First Branch, join host Kevin Kosar and guests as they explain its infrastructure, culture, procedures, history, and more.
The topic of this episode is, “Should Congress pass a balanced budget amendment to the Constitution?”
The federal government experienced a shutdown in autumn 20025, which is one of many that have occurred in the past 20 years. The nation also has racked up about $38 trillion in debt, and Congress and the president have not taken real action to right America’s fiscal ship.
So should Congress pass a balanced budget amendment to the US Constitution?
My guest Kurt Couchman says ‘Yes, it should.’ Kurt is the author of the new book, Fiscal Democracy in America: How a Balanced Budget Amendment Can Restore Sound Governance(Palgrave MacMillan, 2025).
Kurt has been kicking around Capitol Hill for about 15 years. Presently he is a senior fellow at Americans for Prosperity, a group that promotes the principles and policies of economic freedom and liberty. Previously, Kurt worked for two members of Congress, and has had stints at the Cato Institute and the Committee for a Responsible Federal Budget, among other gigs. He has spent a lot of time engaged with Congress on matters relating to federal spending and the budget, so I am delighted to have him here with us to discuss the idea of a balanced budget amendment to the US Constitution.
Click here for the full transcript to the episode.
The topic of this episode is, what are budget rescissions and pocket rescissions?
Rescissions have been in the news recently. This past July President Donald J. Trump sent the House and Senate a rescissions message. This memorandum requested that Congress rescind, or take back, spending authority it had previously granted. Congress passed the legislation, which cut $9 billion from foreign aid, the U.S. Institute for Peace, and the Corporation for Public Broadcasting. A rescission of funds has not occurred since 1999, when former President Bill Clinton, a Democrat, struck a deal with the Republican-held House and Senate.
Now the Trump administration is attempting a maneuver called a “pocket rescission.” What’s a pocket rescission?
To answer that question I have as my guest my colleague, Dr. Philip Wallach. He is a senior fellow at the American Enterprise Institute. He is a colleague and a friend. At AEI he studies America’s separation of powers, with a focus on regulatory policy issues and the relationship between Congress and the administrative state. His latest book is Why Congress (Oxford University Press).
Click here for a full transcript of the episode.
The topic of this episode is, “Was James Madison the first majority leader?”
Both the Senate and the House of Representatives have a majority leader. At the time of the recording this podcast, Republican John Thune of South Dakota is the Senate majority leader, and Republican Steve Scalise of Louisiana is the House majority leader.
Now, congressional scholars tend to argue that the majority leader emerged as a position in each chamber in 1899. Democrat Arthur B Gorman of Maryland was the first Senate majority leader, and Republican Sereno Elisha Payne of New York was the first House majority leader.
My AEI colleague Jay Cost has a different view. He thinks the first majority leader appeared on Capitol Hill far earlier, and it was Virginia’s James Madison. So, we’re going to discuss that claim, which you can find in his recent piece, "Icons of Congress: James Madison — The First Majority Leader."
So, we’re going to discuss that claim.
Dr. Jay Cost is the Gerald R. Ford nonresident senior fellow at AEI and the author of the superb book, James Madison: America’s First Politician (2021), and other fine volumes on politics and history. Regular readers of UnderstandingCongress.org no doubt have seen Jay’s various reports and essays, and if you have not seen them, do have a look.
Click here to read the full transcript.
The topic of this episode is, “Does Congress's power to declare war mean anything?”
In June of 2025, President Donald J. Trump directed US aircraft to drop 30,000 pound bombs on nuclear facilities in Iran. Some legislators in Congress and some media complained that this was a violation of the US Constitution. They note that Article I, Section 8 declares, “Congress shall have the power to declare war.” That same article of the Constitution also empowers the legislature to “provide for the common defense.”
So, was the President’s action constitutional or not? And does Congress’s power to declare war mean anything?
To help us think through these questions I have with me my AEI colleague, Gary Schmitt. He is the author of many books and articles on American government and he has written extensively on legislative and presidential war-making.
Click here to read the full transcript.
The topic of this episode is, Why are legislators on social media?”
We’ve all seen it, and if you haven’t, well, you will soon enough. Social media posts by members of Congress. They are on Facebook, X.com (what used to be called Twitter), Bluesky, and the like. The average voter may be forgiven for wondering, “Why are these lawmakers hanging out online? Don’t they have anything better to do?”
To try to help us better understand what is going on here, I have Annelise Russell, Associate Professor of Public Policy at the University of Kentucky. Dr. Russell has been studying legislators’ use of social media for years and is the author of Tweeting is Leading: How Senators Communicate and Represent in the Age of Twitter (Oxford, 2021). So who better to discuss this topic with us?
Click here to read the full transcript.
The topic of this episode is, “Is Congress getting anything done?”
The 119th Congress convened in early January. Months have gone by, and there are lots of things happening in Washington, DC.
But is it all being done by President Donald J. Trump? Is Congress itself doing anything?
Gabe Fleisher is here to help us answer that latter question. He is the creator and editor of the must-read publication, Wake Up to Politics. He started this newsletter in 2011, and you may have seen him being interviewed CNN, MSNBC, NPR, and in various other major media.
Click here to read the full transcript.
The topic of this episode is a recent book that is titled, Congressional Deliberation: Major Debates, Speeches, and Writings 1774-2023 (Hackett 2024). The book is edited by Jordan T. Cash, a professor at James Madison College at Michigan State University, and by Kevin J. Burns, a professor at Benedictine College.
As the book’s title indicates, its coverage is capacious: the very first excerpt comes from John Adams’ diary entries on the debates in the continental Congress, which he wrote in 1774. The books’ very last entry is taken from the debates that led to the ouster of Speaker Kevin McCarthy in 2023.
Certainly, I could go on and on about all the parts of the book that fascinate me, but today we’re going to do something better than that. I am going to chat with one of the editors, Jordan Cash.
Click here to read the full transcript.
The topic of this episode is, “What does a member of the House of Representatives do all day?”
It is not easy for the average voter to imagine how a member of Congress spends each day. We see images of them standing in the ornate chamber, talking with voters, and there’s no shortage of videos of them delivering speeches or denunciations of presidents or the other party. Some polling data indicates that many voters think legislators have cushy, part-time jobs and have legion staff doting upon them.
But is life in Congress really like that?
My guest is Derek Kilmer, who has written a chapter on this subject for Casey Burgat’s new edited volume, We Hold These "Truths": How to Spot the Myths that are Holding America Back (Authors Equity, 2025).
And who better to talk about this topic than Derek Kilmer. He is a former member of Congress. He represented Washington state’s 6th district from 2013 to 2025. Mr. Kilmer served on the House of Representatives’ Appropriations Committee, which helps decide where federal spending goes. Listeners may also remember that Mr. Kilmer also co-led the House’s Modernization Committee, and he previously was on this podcast to explain the various things that were being done to make Congress work better.
Click here to read the full transcript.
The topic of this episode is, “Can term limits fix Congress?”
Many Americans, including possibly you, dear listener, look at Congress and think, “These people stink. They spend decades in Congress and are out of touch with the American people and pay too much attention to special interests.” This widespread feeling unsurprisingly leads to nearly 90 percent of Americans telling pollsters they favor term limits for legislators.
So would term limits be a helpful reform? To help us think through this question I have with me Dr. Casey Burgat, a professor at George Washington University. He is the editor of a new volume, We Hold These Truths: How to Spot the Myths That are Holding America Back (Authors Equity, 2025). It's a fun book, and has contributions from a lot of smart people. The book also includes a chapter that Casey authored on this very topic of term limits for Congress. So who better for us to have on the program?
Click here for the full transcript of the episode.
The topic of this episode is, “What is the lost history of Congress’s Offices of Legislative Counsel?”
My guest is Beau Baumann, a doctoral candidate in law at Yale University. He studies the intersection of administrative law and legislation. He has published articles in a number of law journals and previously worked as an attorney for the US Department of Justice and clerked for a federal district court. He is the author of a really interesting, new article titled, “Resurrecting the Trinity of Legislative Constitutionalism.” In it he describes some of the lost history of Congress’s offices of legislative counsel (OLC).
Click here for the full transcript of the episode.
The topic of this episode is, “What has become of the United States Senate and can it be revived?”
The Senate did not have a good year in 2024. The chamber did not pass a budget resolution, nor did the Senate enact any of the dozen annual spending bills. Its year-end calendar of business listed dozens of pages of bills on matters large and small awaiting votes. Lots of floor time was spent on presidential nominations rather than on debating policy or amending legislation and voting on it.
To help us get a better sense of what’s not going well in the Senate and what might be done to improve its functioning I have with me Professor Anthony J. Madonna. Tony is a professor at the University of Georgia. He is the author of many scholarly articles on Congress, and most recently published a piece for Political Research Quarterly titled, “Interbranch Warfare: Senate Amending Process and Restrictive House Rules.”
The topic of this episode is a new book on Senator Mitch McConnell, a Republican who served as his party’s chamber leader for the better part of two decades.
The book was written by Associated Press reporter Michael Tackett, and its title is The Price of Power: How Mitch McConnell Mastered the Senate, Changed America, and Lost His Party. It was published by Simon & Schuster in November of 2024.
It is a fine book, and I certainly enjoyed reading it. I learned a lot about Senator McConnell. For example, who knew that he dated a lot when he was a single guy? Who knew that he had a role in transforming Kentucky from a Democrat-controlled state to one with a vibrant Republican party? And who knew that Senator McConnell recruited a Rep. Tom Cotton of Arkansas to run for the Senate?
Capacious as this book is, I could have read one twice its size. Mitch McConnell is fascinating figure, and a historic one.
So let’s get to it—the story of Mitch McConnell.
Read the full transcript here.
As listeners know, every two years the House of Representatives is reborn. After the November election each party convenes in Washington, DC. They discuss and debate how they will run their parties, and what their legislative priorities will be. And if they are members of the majority party, they will discuss and decide what the rules of the House should be. Then when they open the new Congress in January one of the first things they will do is to vote along party lines on a new rules package.
A group of scholars and former House members recently released Revitalizing the House (Hoover Institution/Sunwater Institute), a report calling for the House to revise its rules. You can find that report on UnderstandingCongress.org.
To discuss why the House should change its rules I have with me one of the authors, Dr. Philip Wallach. He is a senior fellow at the American Enterprise Institute. He is a colleague and a friend. At AEI he studies America’s separation of powers, with a focus on regulatory policy issues and the relationship between Congress and the administrative state. His latest book is Why Congress (Oxford University Press).
Click here for the full transcript of the episode.
The topic of this episode is, “What does the House Ways and Means Committee do? And how does it do it?”
The House Ways and Means Committee is the oldest committee of the United States Congress, first established in 1789 and became a standing committee in 1805. It has jurisdiction over raising revenue for the government to spend---taxes, tariffs, and the like. The term “Ways and Means” comes from English Parliamentary practice, wherein there was a committee with authority for finding the ways and means to pay for government actions and policies.
My guest is Tom Reed, a former member of the House of Representatives. He was in Congress from 2010 to 2022 and represented New York’s 29th and 23rd districts. Importantly for this podcast, Mr. Reed served on the House Ways and Means Committee and was deeply involved with its tax reform work.
Click here for the full transcript of the episode.
The topic of this episode is, “How can the House of Representatives better prepare new members?”
My guest is Rep. Stephanie Bice, a Republican who has represented Oklahoma’s fifth congressional district for the past four years. She previously served in the Oklahoma state legislature from from 2014 to 2020. Prior to that, she worked in business for her family’s technology company and her own marketing firm.
I first met Rep. Bice perhaps eight years ago. I was studying alcohol policy reform and she was deep in the process of helping rewrite some of Oklahoma’s outdated alcoholic beverage laws.
Rep. Bice, I should add, sits on the House Appropriations Committee and the House Committee on Science, Space and Technology. And most relevant for this podcast, she also is on the Committee on House Administration, which has jurisdiction over many matters including the onboarding of new members of Congress.
The topic of this episode is, “How does media affect our perceptions of Congress?’
As listeners no doubt know, Americans are down on Congress. Public approval of Congress has averaged about 20 percent over the past 20 years, according to Gallup. Certainly, the people on Capitol Hill are partly to blame. We have legislators who behave as if they are on a reality television show and who spend a lot of time starting fights on social media. Congress also has hurt its reputation by failing to address major public policy issues, like immigration and the soaring national debt. And then there are the occasional scandals that disgust the average American.
Yet, Americans’ dour opinion of Congress also is fueled by media coverage.
To talk more about this I have with me Rob Oldham, who is a Ph.D. candidate in politics at Princeton University. This year he will be an American Political Science Association Congressional Fellow, and will be spending a lot of time on Capitol Hill. His published papers investigate the relationship between supermajority rules and bipartisan policymaking. His dissertation considers congressional policymaking in response to crises during the era of polarization.
And importantly and especially relevant for this podcast is that Rob is the coauthor (along with James M. Curry and Frances Lee) of a fascinating, recent article titled, “On the Congress Beat: How the Structure of News Shapes Coverage of Congressional Action.” This article was recently published by Political Science Quarterly.
The topic of this special episode of the Understanding Congress podcast is a recent book by Michael Johnson and Jerome Climer. The book is titled, Fixing Congress: Restoring Power to the People (Morgan James Publishing, 2024). Mr. Johnson and Mr. Climer each have spent more than four decades in Washington, DC and have had stints working inside Congress.
Today, I have with me one of the authors, Michael Johnson, who, I should add, is not to be confused with current House Speaker Mike Johnson.
He has a long resume—he has spent about a half century in or around government, with stints in the White House, Congress, and private sector. Mike also coauthored a book with Mark Strand, Surviving Inside Congress (Congressional Institute, Inc., 2017), which we previously discussed on this podcast.
The topic of this episode is, “Does Congress still suffer from Demosclerosis?"
My guest is Jonathan Rauch, the author of the classic book, Demosclerosis: The Silent Killer of American Government (Times Books, 1994). Jonathan is a fellow at the Brookings Institution, and the author of numerous books, including The Constitution of Knowledge (Brookings Institution Press, 2021), and Kindly Inquisitors: The New Attacks on Free Thought (University of Chicago Press, 2014).
I first read Demosclerosis nearly 30 years ago, when I was a graduate school student. I was rifling offerings outside the Strand Bookstore in Manhattan, and the book’s title grabbed me. Once I cracked it, the writing got me hook, line, and sinker. Rauch had taken social scientific insights to explain the mounting federal government dysfunctionality. Whereas pundits and politicos blamed Washington’s foibles and corruptions on bad people, Rauch showed that the trouble was caused by people within the Beltway rationally pursuing their own interests.
I recently re-read this book and think it is absolutely on to something important about Congress, and I am delighted to have Jonathan here to discuss it.
Show Notes:
-
Demosclerosis (National Journal, 1992)
-
Mancur Olson
-
Government's End: Why Washington Stopped Working (Public Affairs, 1999)
The topic of this episode is, "what is Congress' role in a contingent presidential election?"
Two centuries ago, America had a contingent presidential election. No candidate got a majority of votes, and thus it fell to Congress to decide who got to be president. Might the United States have another contingent election? Certainly it is possible. Four of the past six presidential elections have been very close. In 2020, had 44,000 voters in Georgia, Arizona and Wisconsin picked Trump instead of Biden we would have had a tied election, with each candidate receiving 269 electoral votes.
So what is Congress’s role in a contingent election? How does that work? To answer these questions I have with me my colleague, Dr. John Fortier. He is a senior fellow at the American Enterprise Institute, where he studies Congress and elections, election administration, election demographics, voting, and more. John is the coauthor of the books After the People Vote: A Guide to the Electoral College (AEI Press, 2020) and Absentee and Early Voting: Trends, Promises, and Perils (AEI Press, 2006). John also hosts The Voting Booth podcast.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
John, welcome to the podcast.
John Fortier:
Thank you, Kevin. Pleasure to be here.
Kevin Kosar:
Let's start with a simple question. Why must a presidential candidate get 270 electoral votes in order to become the president?
John Fortier:
There's a short answer and a long answer. The short answer is that 270 is a majority of the electors that are possible to be cast.
The longer answer is that there was a debate in the Constitutional Convention about how to elect the president, but it came sort of late in the process. And I would say the first thing that they needed to decide is what did Congress look like? And there were all sorts of debates and back and forth before a compromise was reached where essentially the House of Representatives was one that represented the people more broadly. The states would have a number of House representatives based on their population and the Senate would be equal in the states.
Now when coming to the electoral college, figuring out how to elect the president, Two big principles. One, they had decided at this point that they wanted the president to be elected separately from the Congress. Not like a parliamentary system, not something coming out of the Congress. And secondly, that they were going to reflect that compromise in Congress.
And so, the real number of 270, or the larger number of electors that are available, are basically all of the states have two electors for the senators that they have. And then they have a certain number of electors in the House of Representatives based on their, their House delegation and also D.C. votes. So that's what gets you the total, but it is something of a compromise coming out of a compromise, and this is a majority of the votes that you need.
Kevin Kosar:
So it's a constitutional thing, it's not a statutory thing.
So, let’s imagine a scenario for the sake of illustrating the process: pretend it is mid-November of 2024, and we have Mr. Biden and Mr. Trump tied at 269 electoral votes each, or, that they each got fewer than 270 votes thanks to a third-party candidate garnering a handful of electoral votes. What happens next?
John Fortier:
You're right to point to two scenarios. One would be that there's a tie in the electoral college and in today's numbers that would be 269 to 269. Therefore, no one has a majority or perhaps there's a third party candidate who takes enough electors so that neither of the of the candidates gets to 270. Those are the types of situations which, down the road, are going to get you to a contingent election: one that doesn't go the regular way of counting the electors.
Now, in the meantime, there are steps. The first, of course, is the casting of candidates. The votes by the electors themselves. We the people vote in November, but we are ultimately electing these electors. They are going to their state capitals in each of the 50 states in the District of Columbia, and they are casting ballots in mid-December. Those ballots are ultimately then sent on to Congress and are then going to be counted on January 6. This is typically a very simple process where votes are counted and in almost every case other than two in our history someone has had a majority of the electoral votes. If that is the case on January 6, we have an official president-elect. That person is going to take office on January 20. We similarly do the same thing with the vice presidential votes from the electors for the vice president.
But if no one person gets 270 electoral votes, then we go into what is sometimes labeled a contingent election. And if all is clear, the House of Representatives will immediately convene to vote for a president, but they'll do so in an untraditional way. They'll essentially be voting by state delegation. Each state has one vote and then each state delegation, which could be made up of a bunch of people are somehow going to have to cast that ballot.
Another interesting thing to note—I think that's important—is you do need to get a majority of states, not just a plurality. You need 26 of the 50 state delegations in the contingent election to elect a president. And there are a number of ways in which you might not get that. One possibility is if there are three candidates, another way is that we might have some delegations that are split and that wouldn't count to the total—assuming both those people voted according to party. And you might have a case where somebody has 25 delegations, somebody has 23, and two delegations are split. That's not enough to elect the president, so there's a potential for a deadlock here, and you don't necessarily easily get to the 26.
One more thing lurking in the background, of course, is if for some reason that election is deadlocked or doesn't get to a conclusion, the vice president might be facing the same issue, where the vice president does not have a majority of the electoral votes. In that case, the Senate convenes and votes, but you need to get a majority of the senators to ultimately elect a vice president. Perhaps that might not happen either, but it is more likely that it will not divide in the same way.
You could either have a vice president who's elected, no president, and get to January 20th and have that vice president take over. It is possible that both of the contingent elections are held up, in which case we'd go all the way to January 20th, and then we'd have to go down the line of succession, meaning the Speaker of the House in today's line would become president.
So it's a complicated process, but there is a role for Congress, the House voting very differently than it typically does, and the Senate voting for the vice presidential candidate if there's no majority for either of these in the case of electing the vice president.
Kevin Kosar:
As a follow up, we have the House having to vote for the president, the Senate having to vote for the vice president. Imagine in the House, we have a state that has 10 representatives—six of them prefer Mr. Trump, four of them prefer Mr. Biden. Does their state then get counted towards the presidential total, or do they have to be unanimous? Do we know?
John Fortier:
This would be likely only the case where there are three, three presidential candidates who are being considered. With the 12th Amendment, the House can only consider the top three candidates. They can't consider anybody else. And that was important in 1824 when there was fourth major political candidate who couldn't be considered.
So, if there were a state that had nine reps and it was four to three to two, the House is at times believed that maybe the four would prevail, but we're not absolutely sure about that. So the House might have a role. I'll leave it at that.
Kevin Kosar:
You've already indicated that we could end up in a peculiar situation where if the House can't come to agreement, the Senate could—in theory—come to an agreement about who gets to be the vice president. Would that vice president succeed? Would he become the president come January 20th?
John Fortier:
Yes, a couple things. First, we could go back to the 1800 election, one of two elections (1800 and 1824) where we did have this contingent election.
In 1800, the Electoral College looked a little different. We hadn't passed the 12th Amendment, and it was a bit of a quirk that it was a tie between two people of the same party—Thomas Jefferson and Aaron Burr. They were running like a ticket. And the Federalists didn't do as well, but they controlled a number of congressional delegations, so this tie really could only be resolved with some of the help of the Federalists. Ultimately, especially with the urging of Alexander Hamilton (who preferred Jefferson to Burr), the Federalists voted for Jefferson. So, I think there is bargaining that's likely to happen.
If there is a deadlock, and you don't actually elect the president, most constitutional scholars believe that the president is still sitting there, kind of in waiting. The vice president is going to become the president, but ultimately if the presidential election were later decided—the House came up later in the Congress and decided the election—that president could sort of later come back into play.
Kevin Kosar:
So, when a new Congress first convenes it has no Speaker. One must be chosen before the legislators get sworn in and then move onto the business of the chamber. We had a long drawn out Speaker fight at the start of the 118th Congress in early 2023. What happens to the contingent election if the House deadlocks on choosing a Speaker?
John Fortier:
Of course, what happened in January 2023 doesn't happen very often. I think many people—while we wouldn't like to see this—could think of a way of which the House might not proceed with the Speaker. We—in a sense—had an interim Speaker, Patrick McHenry.
There are people who will argue that maybe the House might proceed without a Speaker by some agreement of the people who were elected. I don't think anybody would prefer that, but I don't think that by itself it would absolutely prevent the House from going forward.
If you mean that there's a determined majority in the House to stop the counting on January 6th and not to go to that joint session, it is in the Constitution we're going to have the joint session.
But I don't think there's anything that really stops the court or others would stop and say the house must join this joint session Similarly the Senate it's the right thing to do. It's what they're supposed to do constitutionally But if you really had a determined number of people of majority of people I think you can do a lot of things to muck up the process So I don't think that's gonna happen and I don't recommend it but you know at the end of the day Determined majorities in Congress can do a lot.
Kevin Kosar:
That's true. Determined majorities can do an awful lot, especially in the House—which is a majoritarian entity—but certainly also true in the Senate. Earlier you've referenced the line of succession. For the help of listeners who are not familiar with it, could you talk a little bit about what this is? This is a constitutional thing. Is it a statutory thing? And who's in this line?
John Fortier:
Yes, it is both a constitutional and a statutory thing. The 12th and 20th Amendments have a process by which the vice president is going to take over for the president if the president dies, resigns, gets impeached and removed, or incapacitated.
That's a little trickier, but also clarified by the 25th Amendment. There are ways in which the president might not be able to be president and the vice president steps in. That's clear. Then it says is that Congress may provide a line of statutory line of succession. It says some more specific things like which officer shall be next in line.
Over the years, we've had three big different ideas, different laws of presidential succession. The first one had just the president pro tem (in the Senate) and the Speaker. The second one, starting in the 1880s, had a Cabinet succession—just the members of the President's Cabinet, no members of Congress.
The current line of succession we've had since Harry Truman put it in place in the late 1940s is a mix. Today, the Speaker of the House and the President pro tem are the top two people, and then there are all the Cabinet members in the order that the Cabinet's departments were created.
There has been some constitutional debate over the years of whether or not it is appropriate to have members of Congress in the line of succession. That's actually something James Madison protested against—saying officer means somebody in the executive branch—even though we did that in the first law.
We at AEI—with Brookings at times—have had a Continuity of Government Commission, and part of the recommendations of that Commission has been to say there might be more sense in having members of the Cabinet be in the line of succession. There are a lot of difficulties of thinking about bringing a Speaker over and being the president either temporarily or for a long time, especially with issues of change of party and the separation of powers issues.
So our current line has the Speaker of the House as next in the statutory line of succession after the vice president. And if for some reason there was no president elected, no vice president elected, and we have to January 20th, the Speaker would be the one who would step in and become president.
Kevin Kosar:
I could see the concerns about having a legislator step into the chief executive role. You mentioned the speaker and the Senate pro tempore, the longest serving Senator, correct?
John Fortier:
By custom. Of course, we didn't always pick it that way. It's one of the criticisms of the line that it's often a very senior elderly senator from the majority party.
One other thing that's something of a conflict of interest is the case of impeachment.
Let's say you were to try to remove the president and the vice president, or one of them weren't there. There's a bit of a self-interested matter that perhaps the party in the House that's in the majority might put its own person in place. In fact, there was some rumblings back in the days when Vice President Agnew had resigned, and some saw President Nixon as on the ropes. There were some people saying, "Don't confirm Gerald Ford because now we can appoint a new vice president with the 25th Amendment." And if you didn't appoint Vice President Ford and then impeached Nixon, the president would have been Carl Albert, the Speaker of the House. And there were even some efforts with a faction of the Democratic Party getting significant memos written about what would the Carl Albert presidency look like.
Kevin Kosar:
We can never forget about incentives, can we? And we can never forget Madison's point that you can't expect people in politics to be angels.
As a closing question, since amongst your many areas of scholarship are a scholar of continuity of government, when you look at the current process for Congress having to deal with a contingent election, do you think it's a pretty strong, robust, and steady process, and that we can relax and not be anxious about it? Or is this something that maybe some sort of reforms really should be put in place to just ensure that things go smoothly?
John Fortier:
We are coming up on the 200th anniversary of the last time we've had a presidential contingent election in the house—1824 was when we had the last one. It's a good thing we haven't had a lot of them. I think with our two party system—which is pretty strong—we're less likely to have it because we're not likely to have a case of multiple candidates. It really has to be a 269-269 tie scenario.
That being said, the Electoral College itself is not popular in most public opinion polls. There are people who don't like the idea of the popular vote being able to go one way and the Electoral College vote the other way. A contingent election is a very obscure procedure, and one that suddenly transforms the House of Representatives into something like the Senate, where the House is voting by states. This is much more unequal than the Electoral College itself. unfamiliar, again, could elect a president of the, who didn't win the popular vote. I'm not sure the American people are going to love seeing this process.
There are some little things around the edges that Congress can do to clarify the rules about how it works, but getting rid of it requires a constitutional amendment. There is an effort out there—a complicated effort which I won't get into—where a bunch of states band together and agree to cast their electors for the winner of the popular vote, indirectly bypassing the Electoral College. That still is hard to do. You have to get a bunch of states to do it and they're not at a majority yet. But this provision is in the Constitution, so it's very difficult to reform.
One point to clarify sometimes where Is it a question of did Congress not get a majority of people or did it just deadlock? Because that's a different situation. Deadlock probably means going to January 20th and the Presidential Succession Act and the not having a majority after all the votes are counted goes to this contingent election. So clarifying when you go to what, how it works, I think it would be a good thing. But I'm not sure the American people are going to really love seeing this in action if we do end up having it.
Kevin Kosar:
John Fortier, thank you for helping us better understand the role of Congress in a contingent presidential election.
John Fortier:
Thank you, Kevin.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others
This topic of this special episode of the Understanding Congress podcast is a recent book by a former Hill staffer. It is titled Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi (Lexington Books, 2023)
The author is Bradley F. Podliska is an Assistant Professor of Military and Security Studies at the U.S. Air Force Air Command and Staff College in Montgomery, Alabama.
Brad is a retired U.S. Air Force Reserve intelligence officer with the rank of lieutenant colonel. He was deployed to Iraq in 2008 and also worked as an intelligence analyst for the Department of Defense.
Dr. Podliska is a former investigator for the U.S. House of Representatives Select Committee on Benghazi. He is the author of two books, and that latter experience working on the Hill formed the basis for his book, Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Professor Podliska, welcome to the podcast.
Bradley Podliska:
Thank you, Kevin, for having me. I appreciate being here.
Kevin Kosar:
You were an investigator for the House of Representatives. I introduced you as a professor, but you had on-the-ground experience inside Congress as an investigator for the House of Representatives. For audience members who have never heard of that position, what do House investigators do? And how did you get to that position?
Bradley Podliska:
Investigators are another term for subject matter experts, usually based on their executive branch experience. The role of an investigator is to interview witnesses, request documents, analyze those documents and then provide new information back to the members for the committee so they can conduct their investigation. Now with that said, the titles when it comes to the Benghazi Committee were completely and totally arbitrary. Attorneys had “counsel” in their title and if you were a non-attorney, you either had the title of investigator, professional staff member, or advisor, but we all did the same work. So we were all analyzing documents, we were all interviewing witnesses, and then we were reporting the results to the committee members.
In my particular case, I spent 17 years in the intelligence community and the Defense Department, and I knew someone that had known the Republican staff director of the Benghazi committee for over two decades. So I submitted a resume and I was hired soon thereafter, and this is a point I actually make in my book Fire Alarm, which is that you're basically hired on perceived party loyalty. I refer to this as a non-compensatory dimension. In other words, merit is a secondary condition. You might be the best person for a job, but if you are not perceived as a partisan, you are not going to be hired in the first place. This is done is through those personal connections that I talked about. I am not aware of any staff member that was hired on the Benghazi committee that either did not have prior Capitol Hill experience or did not know somebody on the committee itself.
Kevin Kosar:
And that should—for listeners who have heard some of the other podcasts I have done on the Congressional Research Service, Congressional Budget Office, Government Accountability Office—that is a very different thing from what happens at those legislative branch support agencies. Over there, it is a nonpartisan hiring process, based on merit, and once they are hired, they are tenured for life once they get through their one-year trial period to make sure that they are a right fit for the job. It is a very sharp contrast.
This committee that employed you—we will call it the Benghazi Committee, since the title is rather long—was not the same thing as the typical standing committees, the ones that have lasted forever (e.g., the Agricultural Committee or the Armed Services Committee). Where did this thing come from? How was it created and how was it different from the usual Congressional Committee?
Bradley Podliska:
That is certainly correct. This was a Select Committee and it was established through a resolution for the purpose of investigating a particular issue. The resolution is going to detail the power and authority that a Select Committee has, and—unlike a Standing Committee—it is not limited to a particular subject area.
Now when it comes to the Benghazi attack, the government had actually conducted 11 prior investigations prior to the setup of the Benghazi Select Committee. The FBI had conducted an investigation. The State Department and County Review Board had conducted an investigation. There were five House committees and four Senate committees that had conducted investigations.
The Benghazi Select Committee in particular was forced into being by an outside group referred to as Judicial Watch. On April 29, 2014, they obtained an email from Obama advisor Ben Rhodes via a FOIA request. And in that email, Rhodes is going to tell Ambassador Susan Rice that she should emphasize that the attacks were, “rooted in an internet video and not a broader failure of policy.” This email forced then-Speaker Boehner—who at the time did not want to set up a Select Committee—to hold a vote on May 8, 2014 to establish the Select Committee on Benghazi. It's going to be given a mandate: nine investigatory tasks that it's going to look to when it comes to the 2012 Benghazi attacks, which boil down to why did the attack happen, how the Obama administration respond to the attack, and did the Obama administration stonewall Congress in its prior investigations.
Kevin Kosar:
What did this special committee look like? Was it a lot of staff working for it? Was it a sprawling operation or was this a tight-knit group of people?
Bradley Podliska:
It was a small staff—24 staff members in total: two press secretaries, two executive assistants, security manager, and the interns. Arguably, there was a 25th member, who was actually a reporter. The committee would link information to this reporter and she would publish the results of this. So, you know, de facto 25. However, of this 25, there was only 15 staff members who could be identified as actually being actively involved in the investigative work of the committee. This included the staff director, the deputy staff director, the chief counsel, and 12 investigators, counselors, and advisors.
Kevin Kosar:
I think it is easy for people—when they hear committees—to think about what they see on TV, which is a bunch of legislators sitting at a dais with maybe a staffer or two lurking in the back, and a clerk tapping out notes of what is going on. But that is not all the people power involved.
How often were legislators working with the staff, poring through documents? What percentage of that time were they there doing that hard work?
Bradley Podliska:
In general, very, very little. Now this did vary from member to member. I actually looked at this in Fire Alarm, so I can say that Representatives Jim Jordan, Lynn Westmoreland and Trey Gowdy were actively involved in investigation. They were attending those witness interviews, and getting briefed on a regular basis. But then we have Rep. Peter Roskam on the opposite side. He only attended four high profile interviews in total. I think I saw him for a total of maybe one staff meeting, so simply not involved.
The day-to-day activities of the committee are actually done by the staff. You are going to tee up that information for the committee members and it is up to them on what they are going to do with it. We can get into details on Rep. Roskam’s Clinton hearing, what it looked like in terms of not being prepared. But generally speaking, it varied greatly between the members.
Kevin Kosar:
It is a good reminder of the old quip by Woodrow Wilson, 120 some years ago, that Congress at work is Congress in committee—staff in Committee; that is Congress at work.
Early in your book, you ask—and this is a driving question for Fire Alarm—how did a committee devoted to researching a terrorist attack on a US compound in Libya turned into a conflictual partisan operation. How did that happen?
Bradley Podliska:
My central claim in Fire Alarm is that both Republicans and Democrats actually use these taxpayer-funded congressional investigations as an arena to mount political attacks for electoral advantage. This actually stems from institutional changes under Speaker Newt Gingrich in 1995. He made committee chair selection subject to a secret party vote and subjected committee chairs term limits, replacing the seniority factor that had been in prior. He set task forces that allow an alternative legislative path to committees. He cut the committee staffs by a third, effectively limiting the expertise available. He also removed the minority party from deliberations.
In terms of the Benghazi committee itself, as I said, Speaker Boehner did not want to set up the committee. His hand was forced by the conservatives, and so when the hiring process was initially completed, it was going to do a check the box investigation. That is up until March 2, 2015, when The New York Times published an article that then-Secretary of State Hillary Clinton used private email. After that, and up to her hearing on October 22, 2015, the investigation is going to kick into high gear going after Hillary Clinton to the exclusion of investigating the White House, intelligence community, or Defense Department.
One example of that is the committee issued 26 press releases about Clinton, three about the State Department, but absolutely none about the White House, Defense Department, or our intelligence community. The committee is going to direct 15 of its 27 document requests towards the State Department, including five for Clinton herself.
Here are a few other examples. The committee is going to produce 74,306 pages of documents; 72,343 of those pages came from the State Department. It interviewed 107 witnesses; only three of those were from the White House. It conducted 24 Defense Department interviews; 19 of those interviews are going to occur in the last four months of the actual investigation itself.
Kevin Kosar:
Not only was Hillary Clinton the Secretary of State, but she considered as the leading candidate for the Democratic Party’s nomination for president in 2016. And what happened in Benghazi became a vehicle of embarrassment and referendum on her confidence. Her use of private email was also remarkable and problematic because a) you are not supposed to do that and b) there are classified information policies that the executive branch and as the leader of an executive agency you are responsible for ensuring that those are obeyed.
What other background factors that should listeners know about?
Bradley Podliska:
Certainly, that is going to change completely the course of the investigation because this now becomes about Clinton's emails. Did she cause a problem and bring the attention onto herself? Arguably, yes. And, as it turned out, she had the private server set up in her basement of her house which added fuel to the fire.
With that said, the investigation goes into high gear and goes after her. Nobody is taking responsibility and now it appears that Clinton is hiding things. This is going to add, as I said, fuel to the fire.
Kevin Kosar:
You noted that, when Newt Gingrich was the Speaker in the 1990s, there were alterations made to the way the House operated. This was the first time that the Republicans had gained control of the House in four decades, and they were putting things under new management: changing how the House works and they were making it a little more parliamentary in nature. It was much more kind of becoming a team sport exercise. When you are the majority, you stick it to the minority. You vote with the team. Do not cross the aisle unless you absolutely have to. And so you describe these kind of forces that have been building up over the years.
But was it inevitable? The Benghazi hearings that were just so polarizing and got so ugly, it did not have to end up that way, did it?
Bradley Podliska:
No, absolutely not. And so, going back to my earlier claim, you are hiring party loyalists to conduct this investigation, and these are not necessarily going to be the subject matter experts. They are getting their direction from Speaker Boehner's office on how to conduct this investigation. And so, one of the points I make in Fire Alarm is it is evident to me that nobody actually read the witness interview transcripts after they were completed. They put together this report kind of anecdotally, and in doing so they missed key factors that actually were more incriminating on Clinton than they actually found.
Kevin Kosar:
So in the rush to bloody up a member of the opposite party and the person who would become the next candidate to run for the presidency, essentially the truth got lost along the way.
Bradley Podliska:
Absolutely. In my book, I talk about a key interagency meeting at 7:30 PM on the night of the attacks. Clinton—as the senior official—is going to lead this meeting, and this groupthink mentality takes place that Ambassador Stevens has been taken hostage. This is going to lead the military to making a whole bunch of other mistakes and delay in their response for Ambassador Stevens.
Instead of looking for all information that was available to her, including contradictory information, Secretary Clinton read a note at the meeting, saying Ambassador Stevens has been taken hostage. Now, we know this is completely and totally untrue. This was a very well planned, well-organized terrorist assault, which later goes on to the CIA annex. But the military is going to follow her lead and basically execute a plan for hostage rescue and assume they had more time than they did, and the CIA annex does not even come into their equation when it comes to the rescue. Also at this meeting, a narrative is going to take hold—also based on absolutely no evidence—that this attack was due to an anti-Islamic video. Jake Sullivan is going to write talking points from this meeting that are going to show up on the Sunday talk shows five days later where Susan Rice is going to make the infamous comments that this all being due to a video that had gone awry.
Kevin Kosar:
It is a popular amongst voters to imagine that there are great and complex conspiracies that are being carried out by nefarious people in high places and that they are very intricate and coordinated, and they can last for decades. That is not what happened here.
What we end up with is clusters of people playing a rough partisan game, crafting narratives on the fly to some degree to suit their priors and purposes, adjusting them along the way, sometimes just making up stuff outright. All the while, the media is running around and having some sort of interplay with it. It is a messy scene.
Bradley Podliska:
That is exactly right. You cannot have a conspiracy when incompetence is the answer. Officials are doing their best, but not entirely. Other officials such as Ben Rhodes and Jake Sullivan are getting involved and putting a partisan spin on this. And the Republican investigation is all in on Clinton but not looking at the White House, Defense Department, or intelligence community.
We just have incompetence built on top of incompetence. There is no conspiracy theory to be had here. It simply comes down to people failed and people failed to take responsibility.
Kevin Kosar:
This is why books like yours are so important, because there was so much noise being made around this whole phenomenon of what occurred in Benghazi. It was a blur of confusion to anybody trying to follow it from the outside. So much information coming out and so much stuff you did not know if it was true or not true. For somebody to go back, write a history, put everything together, and try to explain how it played out, where the facts were, and where the fantasy was is a huge service. We can all learn something instead of being caught in the myths that were spun at the time.
You ended up leaving the committee before the whole hullabaloo was done. Why? What happened?
Bradley Podliska:
This is actually quite interesting. I talked about Newt Gingrich and how he had fundamentally changed Congress in 1995. He is actually going to pass the Congressional Accountability Act. And included in that is employment law—what is referred to as USERRA—meant to protect reservists that go on military service. So right as The New York Times story is breaking, literally that day, I notified the committee I had to go on military leave on two periods, once in March and then again in May.
I came back and staff leadership is not talking to me, they were not giving me an investigative work. It turned out they were very upset that I had gone on leave and that I had not shifted to this hyper-focus on Clinton when I returned. About a month later, they called me in the office, they told me to resign or be fired. I, in turn, filed a USERRA complaint. The whole thing blew up in the media.
When it...
The topic of this episode is “Why is Congress struggling to manage the nation’s finances?”
My guest is Representative David Schweikert of Arizona. He was first elected to Congress in 2011. Prior to that, he was a businessman, served in Arizona’s state legislature, and as Maricopa County Treasurer.
He is a Republican and holds a seat on the Ways and Means Committee, which writes tax policy. David also is the Vice Chairman of the bicameral Joint Economic Committee (JEC) and co-chairs both the Blockchain and Telehealth caucuses. He is passionate about economics and finance, which makes him an excellent person to ask, “Why is Congress struggling to manage the nation’s finances?”
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Dave, welcome to the podcast.
David Schweikert:
Kevin, thank you for having me.
Kevin Kosar:
What is the state of the federal budget? Do we even have one in 2024?
David Schweikert:
That is sort of the magic question. You have one, but it is not the one you want. In many ways, we are operating on the spending authorization from previous years, which has been renewed over and over. In other words, we are funding things that were supposed to have expired and not funding things that we are supposed to be getting ready to do.
It is the absurdity of a dysfunctional Congress. Priorities that go back to when Nancy Pelosi was speaker are still being funded today.
Kevin Kosar:
Why is that?
David Schweikert:
I actually have an overarching theory, and then we can get into the nitty-gritty of some of the chaos. There is a general lack of understanding of the level of financial stress that the US Congress and the entire country are under.
We play this bookkeeping game in the United States of, here is publicly borrowed money, and here is the money we are borrowing internally. On Friday (February 23, 2024), I believe we hit an all-time record of borrowing about $92,000 a second. Now you hit this sort of constant stress where every dime a member of Congress votes on now is on borrowed money: all defense and all non-defense discretionary.
If my math is correct, we are going to borrow almost a trillion dollars of Medicare into mandatory this year. So now, you come back and you get a member who is all excited, saying he is going to cut spending on HHS (Department of Health and Human Services), some other agency, or some part of discretionary, and he is going to save $500 million.
That is a lot of money. But when you are borrowing about $7.5 billion a day, many of the fights we are having are over a few hours’—if not just a couple days’—worth of borrowing. It is a way we can look like we are doing something because we are terrified of getting in front of a camera and telling the American public that 100% of borrowing for the next 30 years will be interest, healthcare costs, almost all Medicare, and backfilling the Social Security Trust Fund—if we decide to backfill it.
Kevin Kosar:
Those are astounding numbers. I think it was on Friday you tweeted out some numbers on the national debt, including a figure of how much we are racking up per second. If memory serves, our national debt is north of $30 trillion. Is that right?
David Schweikert:
We are currently at around $34.3 trillion right now. You are going to hear apologists go out and say, “We're only $27 trillion publicly borrowed.” The absurdity of that is you still have to pay back the several trillion dollars you have borrowed from Social Security, the Medicare trust funds, the Highway Trust Fund, railroad retirement trust, etc. And you will have to pay back with interest. And because you do not actually have enough tax receipts, you are going to borrow the money to pay back the very money you have borrowed.
Kevin Kosar:
That’s not good. I would be quite concerned if I had an uncle or somebody who was borrowing money to pay money that he had borrowed.
David Schweikert:
And I only bring it up because this is my moment to tell those out there in the intelligentsia in Washington, DC who were mocking me and my JEC economists about four or five months ago when we were saying interest will be a $1 trillion—over $1 trillion gross—in the 2024 fiscal year. Well, a couple of weeks ago, Treasury confirmed that.
That makes interest the second biggest expenditure after Social Security in your federal government—more than Medicare, more than defense.
Kevin Kosar:
I recall a book from some years ago by Eugene Steuerle, who has written on and thought about budget matters for a very long time. He spoke of the deficits and debt and the crowding effect it can have, and he called it “a loss of fiscal democracy”, because you just do not have as many choices now because you are locked in so many things.
David Schweikert:
And in a weird way, it goes back to your previous question. Why don't you have a rational budget? Why don't you have rational appropriations? Why can't you do rational policy? How do you do those things when you now have to go home and explain to your voters that waste and fraud is huge, but still small compared to what we are borrowing? All foreign aid might be five, seven days of borrowing. Or on the left, taxing rich people more.
There is a great paper out of the Manhattan Institute from about three, four months ago that talks about if you did tax maximization on everyone earning at least $400,000—maximized every tax: estate tax, income tax, etc. to the point where you got peak tax receipts before you started to lose receipts—and adjusted it for its economic effects, you might get 1.5 or 2% of the entire economy. And for many of us on the right who want to cut things, we can only come up with 1 to 2% of cuts in government GDP. That is a lot of money, but—and I am doing this math off the top of my head—I think we have borrowed about 9.6% of the entire economy so far this fiscal year, in a year when the economy is actually pretty good.
So the left's idea only gets you 1.5 to 2% of GDP, and the right’s idea gets you another 1 to 2%, but in a time of good economy, you are borrowing 9.6% of GDP. Do you see a math problem?
Kevin Kosar:
Yeah, I recall that paper you referenced by Brian Riedl at Manhattan Institute. He is a fearless truth teller, knows his stuff, and unlike you or other legislators, he does not have to face voters so he can give the unpleasant facts of the matter.
Some time back, I spoke with a budget expert who reminded me that it was the habit of the US government since the Founding to try to have a roughly balanced budget over the long run. You hit rough times, a war, or other problems that cause you to run deficits, but then you turn around and make some adjustments and get yourself back to where you are supposed to be. That was Paul Winfree, who used to be at Heritage and now has his own organization.
That seems to have been lost. Everybody seems to want to talk about running structural deficits as a problem—unless you are a modern monetary theorist—but there does not seem to be much willingness to act.
David Schweikert:
Not to be disharmonious, but I think it has actually gotten in some ways simpler than that problem. The old history is when you need a stimulus, borrow some. When times are good, pay off your sins.
Again, 100% of the debt from today for the next 30 years is interest—another way to say it is demographics. We hate to talk about this because it gets you unelected, but it is truthful—we got old. There was an update in fertility numbers on Friday, which were terrifying. I think we were down to 1.63 in last year's fertility rates. So now we have fertility that is equal to Western Europe and lower than France and a number of other countries. My math is that in about 15 or 16 years, the United States will have more deaths than births.
We have to deal with the reality that we have a population that has earned benefits—our baby boomers have earned their Medicare and Social Security—but we do not have the population growth or the economic vitality to have the tax receipts to take care of that.
So you will have to be willing to do some things that change health care costs. Most of the political class wants to play these games of “Medicare for All” or this or that, but none of those actually reduce costs. What they do is they shift who pays—it is subsidized here and paid over here instead of adoption of technology, adoption of aggressive math.
For example, if diabetes—particularly Type II—accounts for 33% of all healthcare spending, 31% of all Medicare, wouldn’t it make more sense to have a brutally honest conversation to prevent diabetes, maybe by tackling obesity in America? And it turns out mathematically, that is one of the first things in the stack you could do that is moral. It's great for society. It's great for family formation. It's great for being able to come back into the workforce.
It's also moral. We actually have some math that shows that one of the most powerful things you could do to close income inequality for urban poor, rural poor, my tribal poor here in Arizona, would be to take on things that are preventable in health. Five percent of the population accounts for over 50% of healthcare expenditures. Help your brothers and sisters with those chronic diseases, and the most common is obesity. And it is fascinating the attacks I will now receive for what I just told you, even though every bit of that is ethically and mathematically absolutely truthful.
Kevin Kosar:
Yeah, I recall seeing some of the things you put out about Ozempic, and the idea that we could have these medications that could just do miraculous things to improve health in that area.
David Schweikert:
And I want to be careful about that. It is obviously bigger—should you actually have a brutally honest look at agriculture policy? Should you have a brutally honest conversation on what to do with nutrition support in the United States? When you look at mortality statistics and the health outcomes of the population—particularly the poor—and then you actually take a look at what causes those health outcomes, it is frustrating because the political class often wants to say, “We'll just cut spending here.” But when you lay out in front of them what your options are to cut, they like the rhetoric but they do not actually like the facts of what would have to happen.
Kevin Kosar:
And as you alluded to earlier, the magnitude of what they are pointing at is not going to make much of a difference because those are not where the real drivers of the deficit and debt are—they are in these other categories. What are we up to on the entitlements plus debt payments? Is that 65-plus percent—
David Schweikert:
Oh, no, much higher. If you are borrowing close to 30% of your government, and—it is actually probably even more this year. It should not be because you have a year where tax collections have grown four-plus percent. Yet, we actually have had months where our spending is triple that.
There are always complications. We had certain deferred healthcare treatments, we had this huge spike in Medicare, and we are trying to figure out what normalization is. But if we come in this year—when tax receipts are up fairly healthily—borrowing $2.5, maybe $3 trillion, imagine what would happen if we went into an economic slowdown. Imagine if we get into a hot war. Imagine if there is another pandemic. We have made ourselves very economically fragile from the federal borrowing debt standpoint. Congress is no longer in charge. The Administration no longer is in charge. We have made the decision to put the bond market in charge of your government.
Kevin Kosar:
It is clear that it is probably tougher than maybe ever for a legislator to tell voters the truth about how the federal finances work and the real work that goes into cutting deficits. It's not going to be pretty. It's going to be hard—
David Schweikert:
It will be hard. There is hope, but that window is closing on us very fast. We have done some experiments on things you could do in health, the adoption of AI, adoption of technology, shutting down programs that do not really do anything anymore, etc. And for them to have the real fiscal effects before you have hit such a level of borrowing that the financing cost just sort of takes over everything, you may only have four or five years to make some of these decisions. Maybe even less. On some of the health stuff, you need to do them in the next 36 months.
Kevin Kosar:
Is there anything that can be done in terms of the 1974 budget acts that would make it better, easier, or less agonizing and difficult for Congress to collectively kind of make these decisions? Or is it just we just need better people who can step up, tell the truth, and make hard votes?
David Schweikert:
I actually believe in the 1974 Budget Reconciliation Act. There are a number of tools there that could be used, but you also need a structural change in the committee structure. This one is uncomfortable to talk about, but you have a lot of committees that deal with the same policy area. For example, health is in like four committees. And that makes it very complicated and difficult to try to fix things, such as providing certain incentives in Medicare to keep people healthy, add competition, legalize the use of technology, etc. We have to redesign the areas of authority of the individual committees and do a better job of tying the policy side to the appropriation side, because we have this disconnect now where we appropriate, but it is almost impossible to move policies that are disruptive.
For example, we took great joy and pride in the price transparency bill. But our own scorers and outside academics say that it may possibly bend healthcare costs by 0.5% over a decade. Yet you have in many markets a double-digit price growth on healthcare. So we pat ourselves on the back for accomplishing these tiny rounding errors because they sound great in speeches and mail pieces. But the scale of movement against us financially is overwhelming and we are terrified to tell the truth about it. So your only choice may be to put together a debt deficit commission, give it remarkable authority, give it an up or down vote in a lame-duck session, and just accept that the people who lead it are destroying their potential political careers to save the country.
Kevin Kosar:
It sounds...
The topic of this episode is, “What is legislative effectiveness?”
We voters often say that we want our senators and members of Congress to do things, and preferably, the right things. We tend to dislike it when we see people on Capitol Hill who are all talk and no action. And in theory, we should vote out of office those lawmakers who are ineffective.
Let me have a caveat here. To be sure, there are some legislators who have turned noise making into a profitable brand, and they do use it to get reelected again and again. But in my 20 years of watching Capitol Hill, it's my estimate that they comprise a small percentage of the total membership. Most people in Congress are, to varying degrees, trying to get things done. So how, then, are we voters supposed to tell which of these legislators are effective and which are not?
To help me answer that question, I have with me Craig Volden. He is a professor of Public Policy and Politics at the University of Virginia. Dr. Volden is the author of many publications. Critically for this podcast's purpose, he is the founder and co-director of the Center for Effective Lawmaking, which produces scores of legislator effectiveness that you can find at: thelawmakers.org.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Welcome to the program.
Craig Volden:
Thanks so much for having me. It is a delight to join you, Kevin.
Kevin Kosar:
So let's cut straight to the topic of the program. What is legislative effectiveness?
Craig Volden:
This is something that I have been thinking about for a long time working with Professor Alan Wiseman at Vanderbilt University. We wrote a book on the subject about a decade ago called Legislative Effectiveness in the United States Congress: The Lawmakers.
In that book, we defined legislative effectiveness as, “the proven ability to advance a member's agenda items through the legislative process and into law.” So the key elements of “legislative effectiveness”—proven ability, the agenda items of the member, advancing into law—are in there.
Kevin Kosar:
So as the title of the book indicates, it really does focus on the lawmaking function of an elected official.
Craig Volden:
That's right.
And here, Alan and I founded the Center for Effective Lawmaking. And we like to stay in our lane—it is not the “Center for Effective Oversight” or “Center for Effective Communication with Constituents.” The Center is about lawmaking: what it takes to move those bills into law in the Congress and increasingly now in the state legislatures.
Kevin Kosar:
So you mentioned there was a book about a decade ago. In my intro of you, I mentioned the website, thelawmakers.org.
When did that launch, and what was the motivation behind putting that out there?
Craig Volden:
Our book came out in 2014, and there was certainly some academic interest. But there was also some broader level of interest among members of Congress, in the good governance community, and some private foundations. We were blessed enough to get some grant money and to have a conversation about whether we wanted to continue our research on effective lawmaking into the future and, if so, did we want it to be a purely academic exercise or were we interested in maybe more engagement with Congress and with the good governance community? We are both at career stages after tenure where we can combine those—do research and hopefully make that research of use to others.
As part of that, we looked into what would be the best way to make that contribution, and decided that setting up the Center for Effective Lawmaking—a partnership between Vanderbilt University and the Frank Batten School of Leadership and Public Policy at the University of Virginia—made a lot of sense. We have, for example, two dozen faculty affiliates at a variety of colleges, universities, and think tanks, an annual conference, a working paper series, public release of our scores on thelawmakers.org, a small grant competition, etc.—all of the things on the research end that are really helpful to building up a community of knowledge.
On the engagement front, we—along with our good governance partner organizations—generate a new member guide and get involved in orientation materials for new members coming to Capitol Hill. We speak with a variety of organizations that are trying to get people to run for Congress who would be effective once they get there or institutional reformers who are thinking about how to how to make a better Congress.
We aim to be grounded in the research, but simultaneously be of use to the good governance community and to Congress itself.
Kevin Kosar:
Yes. A book is a static creation that cannot be updated unless you release a new edition—you cannot insert new data; you cannot put information on new members of Congress. So a website has got clear attraction to it. Everyone should know also that the website is not behind a paywall—anybody can go take a look at thelawmakers.org.
Now put in terms for non-political scientists out there, how do you measure legislative effectiveness? Do you just count the number of laws that a member's name is attached to as a sponsor or cosponsor? What is the method?
Craig Volden:
We returned to that definition—“proven ability to advance a member's agenda through the legislative process and into law”—to think clearly about how we would objectively measure that.
Prior to our work, there was just the counting up of laws. There was some subjective, “Let's do a survey and see who people think is effective.” We were more interested in a holistic measure, so we actually combine 15 metrics in a weighted average based on the number of bills that any member sponsors, how far they move through the lawmaking process, and how important they are in a substantive sense.
We track five stages of the lawmaking process. For each member of Congress, how many bills did he or she put forward as the main sponsor? But then, how many of those bills received action in committee—a hearing, a markup, a subcommittee vote? How many of them received action beyond committee on the floor of the House or the floor of the Senate—getting to a vote? How many of them passed their home chamber, and how many of them became law?
Since we know that not all of these bills are the same, we downgrade the commemorative bills (e.g., post office naming, minting of coins) and we upgrade the substantive and significant bills—those that get a lot of media attention. These five stages of the lawmaking process and three levels of bill significance combined to 15 weighted average metrics. The things that are rarer—having a law, having a substantive and significant law—then have a much greater weight on one's legislative effectiveness.
We are also recognizing that we are increasingly moving from passing stand-alone bills to conglomerations of bills and ideas into law. The omnibus budget bills or the National Defense Authorization Act (the NDAA) often has embedded within it dozens or hundreds of different pieces of legislation. We are now able to now detect that and give credit for it by using plagiarism style software to find the language that is in bills and see whether it appears in laws later on.
The data available to us is great such that on our website, we are able to give scores for every member of Congress in each Congress from the 1970s right up through the most recently completed 117th Congress and in 21 different issue areas as well. So somebody wondering, ‘Who's really getting something done on defense or in education or in health care?’ can find answers to that and a lot more on our website.
Kevin Kosar:
So I have heard your definition of legislative effectiveness, which is a very individual-centered definition. That would imply that a legislator has a certain extent of authority or power to raise their own effectiveness score. Put a different way, are the most effective legislators inevitably the individuals who lead the House of Representatives or the Senate, the power brokers, those who have been in committee chairs forever and always rack up the high score by virtue of position, or not?
Craig Volden:
We went in with the expectation that we would find that a tenth-term majority party committee chair would outscore a first term minority party member. And certainly, we find that. But what is more fascinating to us is what members do individually—what legislators can do from Day One to become more effective. We have dedicated a lot of our research around that.
Let me give a few examples. We have looked at freshman members of Congress and the congressional staff that they hire—how many years of experience on Capitol Hill did those staff members have? About a quarter of all new members of Congress hire legislative staff who have zero years of Capitol Hill experience. Others hire a very experienced staff, and those who hire an experienced staff tend to be much more effective, as you could imagine.
I mentioned that we scored people on 21 different issue areas. We also looked at the legislative portfolios that members are putting forward. Some members of Congress are generalists—they sponsor bills in 21 different issue areas. Some are much more specialists. They become the go-to person on an issue such as health or education. The most active members find that sweet spot, where they dedicate more than half of their agenda to something where they have expertise. It might be something from their background career, they have a committee assignment in that area, or their constituents care about it. They are not pulled between making electoral and lawmaking considerations, so they're really specialists in those key areas.
The third thing I would point to as an example is we find that the most effective members of Congress are pretty bipartisan. They attract to their bills members of the other party. That is certainly helpful if you are in the minority party, but what we found is that majority party members that build that broad bipartisan coalition are more effective as members of Congress, and that effectiveness has been consistent even in recent years when we know Congress has been quite polarized.
Kevin Kosar:
Yes, the bipartisan angle is important not least because the margins in the two chambers tend to be very narrow. It is not easy to get your party to be unanimous in support of something, and it is always nice if you can get support from across the aisle.
But it is inevitably a question that gets asked on Capitol Hill: when staff are shopping around a boss's bill, one of the responses they get from other offices is, “Is somebody in the other party cosponsoring or supporting this?” People want to know whether this is going to be a tough effort or an impossible one.
How often are you surprised by the results? Do you often get scores where you think, ‘I've never heard of this person, and yet this person is scoring high,’ or, ‘This person always gets media attention as a serious policymaker, but the numbers don't bear it up.’
Craig Volden:
There is some up and down by the nature of what actually became law in a given session of Congress, but we were partly surprised by the remarkable consistency of who is at the top of our lists from one Congress to the next. But we are more interested in discerning the broader patterns than the individual blips up and down, and the surprises often come to us in those patterns.
Let me give you an example of something that we have found recently and are talking about quite a bit. Over the past 50 years, when Democrats have been in the majority party, it is the liberal wing of the Democratic Party that has its most effective members. But when Republicans have been the majority party, the conservative wing of the Republican Party is actually the least effective.
What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.
What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.
The idea that conservative Republicans are not finding Congress very receptive to the bills they are putting forward—even when they are in the majority—helps us explain and understand why that set of individuals has been asking for more power, looking for reforms, and questioning whether the speaker is on their side. Do they have a strong case that their ideas are not moving forward through Congress? In fact, yes, they do.
Kevin Kosar:
Since we're talking about the elected officials, have any of them taken notice of these scores? What about media and voters? Are they picking up on these legislative effectiveness scores?
Craig Volden:
We release the scores at the end of each Congress—Congresses end in January, and we try to get the scores out there in February. When we do, we get a lot of press coverage. Those who are on our top 10 lists tweet about it, write that up, or promote it. And that finds its way in many cases into campaigns. High performers tend to use those scores to promote their case. I think back to the Iowa caucuses 4 years ago when Amy Klobuchar—as she was running for the Democratic nomination—had a series of t-shirts that she was handing out there saying she was the most effective Democrat in the Senate. On the other end, competitors against those who had low legislative effectiveness scores tend to use those in campaigns as well. The other way that that members and media take notice is through some of those activities and programming that we tend to do on Capitol Hill in line with our mission and with our partners. Our new member guide is there on the orientation activities that we do for newly elected members of Congress. It is not so much how can I manipulate the system to get a higher score, but how can I actually be a more effective member of Congress.
And so that advice about setting up and tailoring one's agenda and building out coalitions and all of the rest is, I think, good advice. It is now advice well-grounded in research and something that many members of Congress are paying attention to.
Kevin Kosar:
That is great: academic research that is affecting reality in a positive fashion.
There are many ways to measure our national legislature. Why is legislative effectiveness such an important concept and metric? Why is it something that you have been willing to spend so much of your time on and develop?
Craig Volden:
At the Center for Effective Lawmaking, we have a vision statement as some organizations do. We envision a Congress comprised of effective lawmakers, strong institutional capacity, and the incentive structure needed to address America's greatest public policy challenges.
I am sure your listeners would agree that we are not there yet—maybe nowhere near there yet—but our focus on legislative effectiveness and the work of our two dozen faculty affiliates seems to be offering a path forward. One of our major research endeavors is what we call our Building a Better Congress project. The Building a Better Congress project has three main buckets.
The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men, which could be used to help organizations that are trying to get more women to run for Congress. Our research suggests that there are certain state legislatures that are working really well as training grounds where members of Congress who come from those legislatures seem to hit the ground running. That tells us something about how our system of federalism works and could be promoted.
The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men,...
The topic of this episode is, What is the State of the Union Address, and Why Does Congress Host It?
Once per year, the President of the United States comes to the U.S. Capitol to deliver a speech known as the State of the Union Address. Usually this happens in late January or early February, but it has occurred as late as March 1.
Both members of the House of Representatives and Senators assemble for this speech, along with nearly all members of the president’s cabinet. Justices of the Supreme Court also are there, as are some other individuals. In modern times it has become quite a spectacle—with television cameras beaming the event to millions of homes.
To discuss this grand affair, I have with me Matt Glassman. He is a senior fellow at the Government Affairs Institute, where he studies Congress. Prior to joining the Institute, Matt worked with me at the Congressional Research Service for ten years. There he wrote about congressional operations, separation of powers, appropriations, judicial administration, agency design, and congressional history.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.
Matt, welcome to the podcast.
Matt Glassman:
Thanks for having me.
Kevin Kosar:
Let’s start with the why. Why does Congress host a state of the union address? Does the U.S. Constitution require it?
Matt Glassman:
The Constitution doesn't require, per se, the State of the Union Address as we know it now, but Article 2, Section 3 does sort of contemplate the idea of a State of the Union message. It says the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
So this idea of the president reporting back to Congress on what's going on in the administration and what he would like to see happen in the legislature is contemplated in the Constitution. So, yes, it is there. It's not required to happen every year; it says from time to time. That's been interpreted as annually, but we don't have a State of the Union message every year.
Sometimes presidents don't do it in their last year in office. Sometimes presidents don't do it right after they're inaugurated—they just deliver a different message to Congress. But the idea is rooted in the Constitution and in Anglo-American tradition. It was very traditional for the monarchy to go speak to Parliament as it opened in English history as well.
Kevin Kosar:
So it's discretionary, which means Congress could—if it chooses—refuse to hold a State of the Union address. One could imagine— in these high partisanship times—a House with a Democratic majority that might have refused to allow President Trump to appear or a Republican majority of the House could refuse President Biden's wish to come and speak.
And for president to actually show up for a State of the Union, there's got to be an actual resolution passed, right?
Matt Glassman:
Yes, in theory. Certainly, for the president to come stand on the House floor and talk, he is going to need either the rules of the House and Senate or a specific resolution from the House and Senate to approve that. The President of the United States does not have any right to be in the House of Representatives or in the Senate giving a speech under the House rules. In the Senate rules, the president currently has floor privileges to the chamber, but it is a function of the rules. There is nothing in the Constitution that would allow the president to come give this message in person.
So first, they work out behind the scenes when the president has a date available that works for everybody. Then the Speaker of the House formally sends a letter to the president inviting him to come over. Then a concurrent resolution is passed by the two chambers setting up the joint session where they'll hear the president's address.
It's absolutely correct that, that you could imagine animosity between Congress and the president getting so high that there wasn't a State of the Union as we know it. The president could still send over a letter—that was traditionally how it was done for 19th century. During the Trump administration, people saw the possibility of Nancy Pelosi saying, “You're not coming over. Send a letter and tell us what you think, but we're not giving you a stage in our chamber to do it.”
Now, of course that didn't happen and there's lots of reasons both politically and normatively that you don't want that sort of partisan animosity to upend the State of the Union, but it's totally plausible and you could imagine a situation where it happened.
Kevin Kosar:
And I guess with the chambers being presently divided—Democratic control in the Senate, Republican control in the House—if both chambers don't agree, then it doesn't happen. The president doesn't get to come over, right?
Matt Glassman:
Doesn't get to come over to speak at a joint session that the current resolutions and practice contemplate. But imagine—for instance—that the House Republicans decided for whatever reason that they didn't want Biden to come over for a State of the Union message this year. I think it's totally plausible that Biden might come over to the Senate and deliver his State of the Union address there. Again, that could be filibustered too, in theory—you can imagine situations. But just because you can't get a joint session going in Congress doesn't mean the president can't come over and give an address in one of the chambers. All sorts of combinations are possible.
And this is a level of partisan animosity that even Trump versus the House Democrats didn't create, so it would have to be something sort of even more extraordinary than anything we've seen over the last decade in order to break this tradition.
Now, could you imagine a president of the United States deciding he was done with these in person things, and just sending a letter instead and having someone in his party read it on the floor the way they did in the 19th century? That's also plausible. That would require less partisan animosity. It would just require a president who saw things differently.
I don't think that's likely either. I think most of the time the president believes the state of the Union address is a politically advantageous moment for him and the administration if they do it in person. The letter would sort of downplay it a lot, so I don't see that happening either anytime soon.
Kevin Kosar:
I suppose one could imagine this trend line where thanks to technological advancements over the last 120 years, it's been easier and easier for a president to “go public.” You could have a president who just decides to sit in the White House, do a speech to the nation that way, and basically call up the State of the Union and send over a piece of paper and be like, “Okay, I'm just not putting up with you people.”
Matt Glassman:
Yeah, I think that’s totally plausible. I think the trappings of the State of the Union address give it a little more sort of public influence—a little more. Sometimes in Washington, you get a sense that everybody is watching something like this when in reality, very few people are watching—the Monday Night Football game will vastly outdo the Union address in ratings. But I do think the State of the Union address will get a higher audience than a typical presidential address from the Oval Office or from wherever, so the president see that as somewhat advantageous to getting their message out.
But you can imagine lots of different ways to deal with the State of the Union address, where the climate in the country around a particular issue makes a president decide to completely upend what we expect from a State of the Union Address and just give an address on one topic. We've seen that on occasion in presidential addresses during moments of crisis. Buchanan's address in December of 1860 at the opening of Congress was almost entirely about the slave crisis. Lincoln's First Inaugural was almost entirely about secession. If the moment was more of a crisis situation, you can imagine presidents giving a very different type of address.
Kevin Kosar:
Yeah. So per the Constitution, requiring the executive to report to Congress had two overt purposes. First, getting information from him since the president oversees agencies and has access to their data. It could be useful if he could share this information with the legislature because there is a principal-agent relationship between the legislature and the president. But it's also an opportunity for him to suggest policies for Congress to consider.
What about today? Does the speech have purposes beyond that today?
Matt Glassman:
One thing to know is that those two original purposes reflect the old congressional calendar. One thing to keep in mind was that a typical annual address of the president—which is what they called the State of the Union before it got its modern nomenclature—typically happened in December right after Congress met.
Under the old calendar, Congress had often been out of session since the previous March—or if it was the second session, they had been out of session typically since around June. So there really was a lot for the president to say. The administration had been the government in total for a period of six or even nine months, in some cases, when these annual addresses happened.
So there was literally a lot to catch people up on. There was sort of news you could break about what was going on. I think that is a lot less true now with Congress in session year-round and oversight being an ongoing process. I do not think there's a whole lot of surprises in the president's annual address about the actual state of the union.
In the same way, I think communicating policies for Congress to consider also has a little less oomph than it did in the mid-19th century, simply because—again—Congress is around full time and the president and his administration are proposing policies all the time. So those two sort of natural purposes that the Constitution contemplates probably have shrunk a little bit in their value.
But of course there are other things that the State of the Union address provides. One is an opportunity for the president to do a lot of interest and agency group politicking: to come up with a distributive list of goodies that he can mention to promote or give returns back to different groups in his coalition—be it his partisan political coalition or his administrative coalition of different agencies that he needs to keep happy.
I think this leads to the most important thing about the State of the Union address is that it is what political scientists might call a “focusing event.” The administration has a deadline by which they have got to decide what they believe about certain issues. That is a good thing for the administration. A lot of times in the executive branch, you can sit around debating stuff with no end, but a focusing event forces the agencies to come up with their policies. It forces the White House to choose what their policies are—not only as a priority matter of what their agenda is, but actually what the policies are.
If President Biden comes up to Congress for a State of the Union address in two months and talks about his border policy, he is going to have to have a border policy. That is a good thing—it forces the administration to figure out what its policy is. To that point, it is actually an important deadline on the congressional-executive calendar. Note that it nowadays happens, roughly right before sort of the opening of a budget season. The president's budget usually comes out shortly after the State of the Union, so you can see the address as tied to the administration’s priorities and what it wants to put in its budget.
Kevin Kosar:
And these days—as the head of whichever party he is within—the president is setting the course for the party and reframing the brand in the public's eye to some degree, perhaps in anticipation of the next election. So there is a bit of that PR exercise going on as well.
As I mentioned in my introduction, it is a remarkable event to have members of all three branches of government piling into the same building. There is a whole bunch of other folks too, like members of the diplomatic corps. That prompts a gruesome thing to contemplate—but we got to because terrorism is a fact of modern life. Isn't it a big risk to the continuity of government to have president, vice president, the whole Supreme Court, and so much of the legislative branch all together in this one place? And have they done any thinking about how to mitigate this risk, so we don't end up with a country that has no functioning government?
Matt Glassman:
I think that is obviously a concern. It is quite famous that there is sort of the designated survivor—someone in the President’s Cabinet who doesn't go to the State of the Union address, who stays away from the Capitol and indeed stays away from Washington during the Address.
That was put in place in a Cold War sense where all of a sudden there were ballistic missiles that could blow up the entire city at once to which we had no defense. In some ways, it is more symbolic than useful. It is not clear to me that like the Secretary of Labor would have a whole lot of political authority in the wake of that sort of awful tragedy.
But I do think it is something worth contemplating. I do not think the answer is sort of distribute the people and have the state of the State of the Union address remotely for various people. I think it is important the government comes together, but it does highlight sort of the security concerns. The legislature is a decentralized system to begin with, which is why we do not see a lot of assassinations of legislators—it does not solve you a lot politically. So the time that members of Congress and Congress itself is in danger is when they are all together.
That is why the security on the floor of the House and Senate is what it is. It is why the security following Congress around when it sort of travels in mass. But obviously bringing the administration into sort of ups the ante to it. There is probably not a regularly scheduled event in the United States that has a higher security level than the State of the Union address. If you are ever in downtown Washington on the night of State of the Union, you cannot get within a block of the Capitol—the perimeter really is the biggest perimeter you can imagine.
That does not mitigate all threats, but I do think that there's enough value in the State of the Union Address—and enough value in bringing the whole government together at least once a year—that whatever risks there are that can't be mitigated by the security measures in place just have to be accepted because I think to not allow the government to come together in a whole would probably lose some of the symbolic value of the State of the Union Address.
Kevin Kosar:
Alright, that elides nicely into criticisms of the modern State of the Union Address. I, for one, have groused that it confuses the American public into thinking that the president has way more power than he actually has, and it contributes to this sort of misunderstanding of our system—that the president could just get up there and wave magic wands and make policy happen as opposed to it having to be worked through the legislature in most instances.
Some years ago you wrote a blog post about the State of the Union and here's one thing you wrote in it:
“As many very smart people will undoubtedly tell you today, the State of the Union address doesn’t really matter much. Brendan Nyhan reminded us last year that the instant polling is worthless, that the President doesn’t actually often get an approval bounce, and that unlike a debate there’s no chance of an unscripted moment. John Sides reminded us that any policy or agenda effects from the speech are small at best. And Ezra Klein notes today that the one dimension on which the address may have a strong impact—laying out the President’s policy agenda—is basically a non-issue in an election year with a divided Congress.”
Criticisms—you note them, and I have made mine. Yet you still think it is important. Why is the State of the Union address—in his current modern format—important and worth doing?
Matt Glassman:
I think it is important...
The topic of this episode is, “What is congressional capacity, and why does it matter?”
As regular listeners know, almost inevitably I have a guest on my show. But this episode, you get just me. The reason is simple: I have been working on congressional capacity for years, and I would like to share my thoughts and hear your feedback.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.
It is probably not news to you that the American public is not pleased with Congress. According to Gallup, fewer than 8 in 10 Americans approve of the job Congress is doing.
For sure, part of the dourness is not really about Congress. People are annoyed because what media they see on Congress focuses heavily on conflict and crazy behavior by legislators. The news rarely covers instances of Congress doing good things.
That said, it is still fair to say that Congress is not doing well. Most obviously, it has failed to tackle some of the biggest problems facing the nation, like immigration, and often sits back and lets the executive branch and courts wade into these issues. Which is not how our system is supposed to work.
So what is wrong with Congress?
Many scholars, media, and members of the public diagnose the ills of Congress think in terms of the Three P’s: People, parties, and polarization.
It’s Kevin McCarthy’s fault; it’s Chuck Schumer’s fault. If we had better people, we would have a better Congress.
Others point to the parties. The Democrats are out-of-touch liberals. The Republicans are proto-authoritarians. The Democrats and Republicans have sorted into ideologically conformist enterprises. Gone are the days when we had liberal Republicans and conservative Democrats.
Still others emphasize polarization as the cause for Congress’ failures. We are a nation of red and blue voters and states, so Congress itself is polarized. Gridlock and fighting is the result of Americans being grossly in disagreement with one another.
There is some truth to all these contentions. But these explanations have their own shortcomings.
Critically, the Three P’s ignore an important unit of analysis: the institution itself.
The U.S. Congress is an organization—a firm. Like any firm—a business firm, a school, or a music band, Congress’ performance is greatly affected by its capacity. It can only do as much as it is capable of doing.
In the congressional context, capacity can be defined as “the human and physical infrastructure Congress needs to resolve public problems through legislating, budgeting, holding hearings, and conducting oversight.” Some specific aspects of congressional capacity are its funding, its processes for executing tasks (e.g., how bills go to the floor), its technology for completing its work, how it internally organizes itself, its leadership structure, and its people.
So that is the framework I and my coeditors and coauthors adopted. And this lens for looking at Congress has proven illuminating. What you see is an institution that has experienced escalating demands upon it over the past 50 years yet has done little to empower itself to meet the escalating demands.
Escalating demands
Over the past 50 years, the day-to-day demands on Congress have skyrocketed.
By law, Congress must fund and oversee 180 federal agencies and 4 million civilian and military employees that administer thousands upon thousands of policies and programs affecting the public. Annual spending is about $6.5 trillion, which is seven times higher than it was in 1980 and a dozen times larger than the outlays by the world’s largest corporation, Walmart.
The Senate is obligated to review and vote upon 300 executive branch nominees and thousands of nominees to independent agencies, the military, and the service academies (e.g., the US Naval Academy).
The immensity of federal activity also leads to more demands from the public. In the average year, Americans—whose numbers have swelled 45 percent since 1980—write, email, or otherwise contact Congress between 25 million and 30 million times per year, which amounts to more than 46,000 communications per legislator. That is to say nothing of the escalating demands from interest groups and lobbyists to meet with legislators.
And let me say one more thing about voters: the average member of the House of Representatives has 760,000 constituents. Yet he serves them with a staff of fewer than 20. And the situation in the Senate is even more challenging since there are only 100 senators (many quite aged) who have to collectively serve 330 million Americans.
Yet, very little congressional reform to bolster capacity.
The last major reforms of the institution took place in the early 1970s. And crazily enough, about 30 years ago the people on Capitol Hill thought the public would be pleased if they downsized the workforce of the legislative branch.
Today, legislators have fewer staff (10,000) than they did in 1980 (11,000).
Speaking of staff, the average staffer is 25-29 years old, and most of them will quit their jobs on the Hill before they hit 7 years of experience. They can find more pleasant and more lucrative jobs in the executive branch or the private sector.
Congressional committees, which are supposed to be the engines for policymaking and oversight, also have fewer staff (3,100 in 1980 and 2,300 today).
Congress also has fewer nonpartisan experts working at the Congressional Research Service and other legislative-branch support agencies that help legislators make policy and conduct oversight (from 11,400 in 1980, this figure is down to 7,000 today).
But the troubles do not end there. Consider the committee system, the division of labor with the organization. Which committees work on what legislation—that has little changed in the past 50 years. The House, remarkably, select the chairpersons who lead each committee based heavily upon whether they are good fundraisers and dependable partisans. Knowing something about the subject matter and being good at bargaining with members of the opposite party, sadly, are not the sole criteria for selection to these important positions. The way committees hold hearings looks much as they did 75 years ago. Legislators sit on the dais with one party on one side and the other party on the other side. And they give each witness 5 minutes to deliver a speech and then lob questions at them.
Then there is the legislative process. How about that budget process? We almost had another shutdown on Saturday. We still might in six weeks. The budget process is 50 years old and has very weak incentives for legislators to complete it in an orderly and timely manner. So they do not.
And I would be remiss if I did not talk to you about technology. Newly arrived legislators are often shocked at the sorry state of the technology they have. They are shocked that legislation does not come with “track changes” nor does it typically make clear how it is changing current laws or reference existing programs that serve the same purpose.
Take another example. A few years ago, I was talking to the legislator and he said he was astonished that when he showed up to Congress to work in the House of Representatives, he was handed a pager. He was told that this is members of Congress are notified through when it was time for them to vote. His response was something along the lines of, “why isn't there an app for that?”, but he did not get a good answer. On technology, work processes, internal division of labor, etc., congressional capacity is not where it needs to be.
Conclusion
To be sure, there is some good news.
The House of Representatives created a Select Committee on the Modernization of Congress—which was a bipartisan effort to work on these reforms. That temporary committee worked for a few years and now is a subcommittee in the House that continues to budge reforms forward.
Perhaps of equal importance, I believe that our efforts have begun to help legislators, their staff, the media, and even some voters to recall an important truth: that Congress is the First Branch of our constitutional republic. It is the place where we engage in self-governance and work across and through our differences. And remembering that truth should give us the incentive to upgrade Congress’ capacity so that we can continue to have a representative democracy.
Thank you, and have a great day.
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you’ll share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at @AEI. Once again, thank you for listening and have a great day.
The topic of this episode is, “Delegates to the House of Representatives: who are they and what do they do?”
My guest is Elliot Mamet. He is a Postdoctoral Research Associate and Lecturer at the Princeton School of Public and International Affairs. Previously, he served as an American Political Science Association Congressional Fellow. Elliot holds a Ph.D. in Political Science from Duke University.
Also important to note is that Dr. Mamet spent time working in the office of Washington, D.C. delegate, Eleanor Holmes Norton. All of which makes him a great person to ask the question, "Delegates to the House of Representatives: who are they and what do they do?"
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.
Welcome to the podcast.
Elliot Mamet:
Thank you, Kevin. It's great to be here.
Kevin Kosar:
Let's start with a really simple question. Listeners are all too familiar with the fact that the House typically has 435 members. But they also have delegates. How many delegates are there to the House of Representatives?
Elliot Mamet:
Currently, there are five delegates to the House of Representatives. They serve from Washington, D.C., Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. There's also a Resident Commissioner—a non-voting member—from Puerto Rico. So there're six total non-voting members in the House.
Kevin Kosar:
Representatives in the House come from districts these days. Where and who do these delegates and non-voting members represent? And is represent even the correct term for what their role is?
Elliot Mamet:
The non-voting members of Congress represent Americans who live outside the several states. Throughout their entire history, they've represented people who don't live in states—whether that's in the federal enclave of the District of Columbia or in territories either on the path to statehood or not on the path to statehood. Today, they represent 4 million Americans. Of that group, 3.5 million live in the United States territories—those people are 98% racial and ethnic minorities—and the remainder are the residents of the District of Columbia who are majority black or Hispanic. So the delegates represent overwhelmingly non-white constituents, and they represent a group of Americans who lack the same citizen rights and lack political equality to those people living in the several states.
Kevin Kosar:
Now, on this program, there's been a number of episodes where I and a guest have talked about earlier Congresses—the Congresses at the founding, early 20th century, etc.—and non-voting representatives just didn't come up in the conversation. Are they a recent development, or have they always been with us?
Elliot Mamet:
Great question. The non-voting representative has been a feature since the earliest Congresses. The institution dates back at least to 1784 when a committee chaired by Thomas Jefferson suggested that territories prior to becoming a state would be able to send a delegate to Congress with the right of debating but not of voting.
That proposal was codified by the Northwest Ordinance, and the first delegate sent to Congress was James White of the territory South of the River Ohio, who was admitted to be a delegate to Congress in 1794. And since that time—with a single exception—non-voting members have sat in the United States Congress.
For much of American history, those delegates represented territories on the road to statehood. That changed in two different periods. First was in 1898 with the Spanish-American War, where the U.S. acquired so-called “unincorporated territories,” which were not destined for statehood, including Puerto Rico and the Philippines. Those territories were given resident commissioners, non-voting members of Congress. And second, in the 1970s, Washington, D.C., Guam, the U.S. Virgin Islands, and American Samoa were given non-voting seats. Even though those places didn't seem like they were on the road to statehood, Congress thought it was a way to incorporate the voices of citizens living outside the states in the federal government. The most recent delegate added was the delegate from the Northern Mariana Islands. And last year, the House Rules Committee held a hearing on admitting a delegate from the Cherokee Nation, which has a right to a delegate to Congress under an 1835 treaty, so that issue is pending before the Congress—the Congress has not acted on that yet. But that just goes to show that delegates have been a feature of Congress since its earliest days and I think have played an important role in representing people living outside the states in our national legislature.
Kevin Kosar:
First I want to offer a comment, and then a follow up question. The first comment is for listeners: I want to underscore that we are talking about the House of Representatives. We're not talking about the Senate. We've not had these in the Senate.
But you mentioned earlier that delegates and non-voting members in theHouse were coming typically as a product of a territory being on the path to statehood. The 70s sounds like it was a qualitatively different situation or motivation and part of it sounds like an idea that if you are going to be Americans, then you have to have some sort of representation within the People's House in the name of fairness. Were there other motives in the mix there? Was it, “If we have them, perhaps this will boost the effort to move down the road to statehood,” or some other sort of factors that came to play?
Elliot Mamet:
Great question. So I have a project with Austin Bussing of Trinity University on the expansion of the delegate position in the 1970s. And what we find is that the overwhelming driver of that position was racial preferences. In other words, the delegate position was championed by civil rights organizers here on the mainland and advocates in the territories themselves as a way to give voice to Americans living outside the states. It was also blocked on racial grounds from conservative Southern chairmen in the House, for instance. The D.C. delegate position was also deeply tied to racial politics. D.C. home rule is often thought of as a product of the civil rights movement, and the D.C. delegate was a way to give this then-majority black city some sort of representation in Congress. So we argue that racial preferences were central to understanding why the four delegate seats were added in the 1970s.
I'll also say to answer your question, Kevin, politics mattered—political entrepreneurship mattered. One example of that was Philip Burton, the famous liberal leader in the Democratic Caucus. He advocated expanded seats for the delegates, both because he thought it was the right thing to do—it comported with ideas of political equality and civil rights—and also because it gave him increased power in the Democratic Caucus. He famously lost his leadership election to Jim Wright by one vote in 1976, and if it wasn't for the delegates, he would have lost it by more. His biographer said if Burton couldn't rule the Congress, at least he could rule the territories. And so he was very focused on territorial seats, both because he thought it was the right thing to do and as a way to gain power within the House.
Kevin Kosar:
Interesting. They're called delegates and non-voting members. They're not called representatives or just members. That implies that they are sort of the same but also different in terms of their powers within the chambers. Walk us through some of the similarities and the differences between them and a typical House member.
Elliot Mamet:
Before I get into that, when you meet a delegate on the street, it's polite to call them congressman or congresswoman. I don't think they like to be called delegate themselves.
But it's a great question. On the surface, these non-voting members of Congress seem very similar to their 435 voting peers. They have a congressional office, a website, they field staff, they earn the same salary as others. Importantly, they can sponsor and co-sponsor legislation—a delegate to Congress, Eleanor Holmes Norton from D.C., has co-sponsored more legislation than any other member of the House or Senate in history. They can make many parliamentary motions. They can serve on and vote in committees. They can even accrue seniority to become chair or ranking member of committees or subcommittees. They can move an impeachment and serve as impeachment manager, as Delegate Stacey Plaskett of the Virgin Islands did during the Trump impeachment. They can preside in the Committee of the Whole and—during certain congresses—they can vote in the Committee of the Whole if their vote is not decisive.
So those are some similarities. Let me get to the differences.
Non-voting members, when they vote in Committee of the Whole, their vote doesn't count if the vote is decisive. Five times in congressional history, the Congress has immediately risen from Committee of the Whole to vote in the full House on an amendment because the votes of the non-voting members were decisive. This most recently happened on July 13th. There was a vote on an amendment to the NDAA proposed by Mr. Ogles that would ban DEI in the military, and the vote—including the non-voting members—was 216 to 216, so their vote was decisive. The House had to immediately rise and vote without them. The vote was 214 to 213, so the amendment—which would have failed—was agreed to. So that's one of the differences.
There are important other differences too. The non-voting members cannot vote on final passage of legislation, which means that on an array of federal laws which affect people living in Washington, D.C. and the territories, the representative does not have a vote on the enactment of that law. Under the Constitution, they cannot vote for Speaker of the House. Because they can't vote on final passage, they can't make a motion to reconsider. They cannot preside in the House. Lastly, they cannot sign discharge petitions. And I'll just say that members who die in office or resign, their signature still counts on a discharge petition. But the duly elected delegates from D.C. and the several territories cannot sign a discharge petition, so a deceased member of Congress has more procedural power in this way than an elected delegate representing American citizens in D.C. or the territory. So those are some of the important differences between non-voting members and their voting peers.
Kevin Kosar:
Got it. If I just pause for a second—and let me know if this question, it pulls you afield—listeners might be thinking, ‘the House goes into Committee of the Whole? What does that mean?’ If you could just briefly illuminate on that for listeners.
Elliot Mamet:
Committee of the Whole is a procedural device by which the House considers amendments to pending legislation. The House generally goes into Committee of the Whole when there's two or more amendments offered. In certain Congresses since 1993, the delegates have been able to vote on those amendments as long as their votes are not decisive.
Kevin Kosar:
Perfect. So earlier you mentioned Representative Phil Burton's quest to become the top dog, and he was defeated by Jim Wright, and you mentioned that these delegates, non-voting members had a role. What role do they play in the selection of the speakers? They can't vote on the floor, but they can do what?
Elliot Mamet:
So the non-voting members of Congress can vote to elect party leaders within the Republican Conference or Democratic Caucus. They get a vote internally. And even recently, we saw that Mr. Scalise picked up the votes of the two Republican delegates and one Republican resident commissioner in the internal Republican leadership election. But when it comes to the floor, the delegates and resident commissioner may not vote. Their name is not called because they're not elected members of the House representing the several states, so they're disenfranchised in terms of picking who the Speaker of the House may be.
Kevin Kosar:
But within the conference, they get to vote. And in a close race—which it seems like those are getting more and more common, at least for the GOP these days—that could be a big deal. Could their votes be decisive there?
Elliot Mamet:
Certainly, they were just about decisive in 1976. And as someone who's trying to become party leader, every vote matters, so appealing to these territorial delegates or the delegate from the District of Columbia can be important to solidifying support within the party. One way to accommodate them is to make changes in the House rules that would win their support. It was speculated this year—we have no way of knowing, though—that Speaker McCarthy decided to give the delegates a vote in Committee of the Whole to win their support in the conference. The 118th Congress is the first Republican-controlled House that has given the delegates the right to vote in Committee of the Whole, and it may have been a way for McCarthy to at least get those three individuals to support him within the Republican Conference.
Kevin Kosar:
Really interesting. If I may, I'd like to double back to something you mentioned earlier, which was that possible delegate from Cherokee Nation. What's the process by which that could happen?
Elliot Mamet:
Great. So just to give listeners a sense of this issue, there is an 1835 treaty called the Treaty of New Echota, which guaranteed the Cherokee Nation a delegate in the United States Congress. That treaty right has never been vindicated. Congress has never sat a delegate from the Cherokee Nation.
In December 2022, the Rules Committee held a hearing on seating the delegate and heard from experts at the Congressional Research Service and others on this topic. So there's many issues with ceding a Cherokee delegate that we don't know the answer to. One of the issues is how that would proceed; different scholars and advocates have different points of view. One point of view is that the House rules alone could be enough to seat a Cherokee delegate since this delegate would only be a member of the House. Another point of view is that Congress would need to pass a law actualizing this treaty right. Every other delegate to Congress has been authorized by statute.
But on the other hand, every other delegate to Congress has always represented a geographical area, whether that's Washington, D.C. or one of the territories. This individual would represent not a geographical area, but the Cherokee Nation writ large who are spread across multiple areas, so it's an open question before the Congress how—if they chose to seat the delegate—they would go about doing so.
Kevin Kosar:
Wow, that is really interesting. Are there any other possible delegates who might come up? Are there other American Indian tribes or others who have not been able to get into the game as they should?
Elliot Mamet:
The 1835 Treaty of New Echota is the treaty considered to have the clearest language providing a right to a delegate. But one question is which group is entitled to send a delegate. There's three different native tribes that all claim that treaty right. Two of them have designated a delegate. So that's an issue for Congress.
Indian tribes assert, provide a treaty delegate. And some of those issues were before the Rules Committee’s hearing last year.
The other thing I would say to your listeners, Kevin, is there are a variety of informal representatives from sub-state entities who come to Congress but are not formally admitted. For those living in the District of Columbia, you'll know that we elect two shadow senators, and those individuals are unpaid D.C. officials sent to represent D.C. in the US Senate and lobby for statehood. They're not admitted as Senators, they have no official capacity, and if they want to watch a Senate proceeding, they have to go to the public gallery. So there are other appointed officials representing sub-state entities who...
The topic of this episode is, “How is Congress involved in foreign policy?”
My guest is Jordan Tama, a Provost Associate Professor at American University’s School of International Service. He is the author or editor of five books on foreign policy. They are:
· Polarization and US Foreign Policy: When Politics Crosses the Water’s Edge, co-edited with Gordon M. Friedrichs (Palgrave Macmillan, Forthcoming)
· Bipartisanship and US Foreign Policy: Cooperation in a Polarized Age (Oxford University Press, 2024);
· Rivals for Power: Presidential-Congressional Relations, sixth edition, co-edited with James A. Thurber (Rowman and Littlefield, 2018);
· Terrorism and National Security Reform: How Commissions Can Drive Change During Crises (Cambridge University Press, 2011); and
· A Creative Tension: The Foreign Policy Roles of the President and Congress, co-authored with Lee H. Hamilton (Woodrow Wilson Center Press, 2002).
Jordan also has written many papers on foreign policy, so it seems to me he is a great person to have on the podcast to help us understand how Congress is involved in foreign policy.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Welcome to the podcast.
Jordan Tama:
Thanks so much for having me on, Kevin.
Kevin Kosar:
Some months ago, our listeners heard me chat with Alissa Ardito about the formal powers of Congress in foreign affairs. We talked about things like how the Senate has the authority to approve treaties and to consider nominees to fill high positions in the State Department, the military, and other agencies that are involved in foreign affairs. We also talked about the fact that Congress has the power to declare war and the discretion to fund and create agencies that deal with matters overseas, like the United States Agency for International Development. And we also pondered in a philosophical manner about how we're supposed to have a representative democracy influencing foreign affairs.
But I wanted to bring you in because you're so well prepared, well-studied, and scholarly on the matter of where the rubber hits the road and how the wheels actually turn. So let me start by asking, where should the bewildered citizen first look when trying to understand how Congress is involved in foreign policy?
Jordan Tama:
Congress is involved in foreign policy in a lot of ways, more than most Americans realize. This includes both Congress exercising its formal powers and Congress exercising influence in more informal ways. I'll say a quick word about both of those areas, the formal and informal powers.
Certainly, the formal powers are important, and the most important of these tends to be the power of the purse. When it comes to spending on diplomacy, defense—and defense is half of the discretionary federal budget, so that's huge—and foreign aid, the president simply can't act without Congress appropriating the funds. This gives Congress a power that it exercises every single year, and in recent years, Congress has sometimes challenged the president assertively on foreign policy spending. One example of that was when Donald Trump was president. He wanted to cut the budget of the State Department and the US Agency for International Development (USAID) by a third, and Congress said no and instead maintained the budget at roughly constant levels, which was important in allowing the U.S. to continue playing an active role in the world and providing foreign assistance to other countries.
Congress also routinely influences foreign policy by passing legislation that authorizes or mandates foreign policy stances or actions. For instance, Congress has mandated sanctions in recent years on many countries, including Russia, China, Iran, and North Korea. This is an area where Congress tends to be quite active legislatively.
But Congress also influences foreign policy through its informal powers, which can include public statements by members of Congress—particularly the more prominent members of Congress like the chairs or ranking members of the key foreign policy committees, or the House or Senate leaders. It also can include trips to foreign countries by members of Congress. It could include private meetings between members of Congress and senior executive branch officials. I'll just say a quick word about a couple of these informal tools.
Public statements by members of Congress on high profile foreign policy issues can sometimes be pretty important because they can generate a lot of media attention, and that can shape public attitudes. So one recent example of this is “Make America Great Again” (MAGA) Republicans in Congress along with Donald Trump and some of the MAGA Republicans running for president have been making public statements in opposition to US aid to Ukraine. And this seems to be moving Republican public opinion away from supporting US aid to Ukraine, even though legislatively the MAGA Republicans don't yet have the majority on that issue in Congress. Foreign trips can be important. A lot of members of Congress have gone to Taiwan in recent years, and this can send a strong signal to Taiwan, can infuriate China, and complicate things the Biden Administration is trying to do with regard to China. And then there're private conversations going on all the time between members of Congress and executive branch officials. Sometimes these can be important, but they're not going to be reported in the media. But that sort of thing is happening all the time.
Kevin Kosar:
One of the things you mentioned is that both individual members of Congress and the committees who have formal jurisdiction have a role to play. And that's interesting because that means you have a president and his foreign policy apparatus, but you also have 535 other people who can be getting involved in these things in one way or another, which—like you said—doesn't create a necessarily clear message all the time for foreign nations to pick up on. They instead may be getting a bit of a cacophony, right?
Jordan Tama:
That's absolutely right, and on a lot of foreign policy issues, there is no consensus position coming out of Congress—there're just a lot of different positions. When that's the case, Congress is often not going to be able to pass legislation on the issue, so all you get from Congress is a lot of different messages. But those messages can sometimes still be quite important, and there are issues where there is a prevailing position in Congress. So I'll again go back to something during the Trump Administration. Trump was very critical of NATO and he privately talked about the idea of withdrawing from NATO. Members of Congress who supported NATO heard that and they passed a resolution reiterating US support for NATO—even though there are some members of Congress who are on Trump's wavelength on NATO, the majority was not. So, it's a mix. There are some issues where it's a complete cacophony and Congress is not going to be able to act legislatively at all, and there are others where it's still possible to muster a majority.
But when there's a cacophony, it does weaken the US’s position in the world because it makes it harder for the US to speak with one voice. It makes it harder for other countries to trust US commitments because when they hear a lot of different things coming out of Congress. The president may be saying to them, “We're ready to negotiate some long-term partnership with you,” or, “We're ready to offer you a long-term aid package.” But if foreign governments hear members of Congress criticizing that idea or saying something entirely different, they're going to question whether they should enter into this partnership with the US or whether they can trust the US, because who knows who's going to be president in a few years or what Congress is going to be doing in a few years. So that is a real problem for the credibility, reliability, and reputation of the US.
Kevin Kosar:
Certainly it complicates things, and since the United States is not a parliamentary system—but a separation of power system—it's probably even more difficult for foreign audiences to understand what's going on. When is a legislator popping off not something to be paid much attention to versus what he’s saying is relevant because this guy chairs the Foreign Affairs Committee or he has some influence? Now, is it possible—as a generalization—to characterize Congress as leading on foreign policy issues or following and reacting to the president, or is it just issue by issue?
Jordan Tama:
Certainly, the standard view of Congress is that it follows the president on foreign policy. I think the reality is more nuanced than that. Congress does often follow the president, but there are many cases where it's leading on foreign policy. The cases where it's leading, though, tend to be issues that are a little less salient.
But certainly, the president leads overall on foreign policy. The president is usually the first mover on foreign policy, thanks to certain institutional advantages. Compared to Congress, the president has access to more extensive and up-to-date information about what's going on around the world. The president is getting regular reports from the intelligence community and US diplomats, who are more up-to-date than information that's coming into Congress on a day-to-day basis. And the president can usually act more quickly than Congress. Even when some members of Congress want to do something, they may not be able to persuade their colleagues to go along, may not be able to get legislation approved.
Certainly, when it comes to the use of military force, the president is usually in the driver's seat. Typically, when use of the military is on the table, the president is the initiator, and then Congress is left to endorse the use of military force, criticize it, or simply do nothing. And often Congress is unable to reach consensus and so just doesn't take any kind of action as a unified body. As a result, even though the Constitution gives power to declare war to Congress, there've been lots of military deployments in recent decades by presidents that were not authorized by Congress, and Congress has more or less sat on the sidelines regarding that decision.
But there are plenty of other issues where Congress does lead on foreign policy. This is often in the form of members of Congress pressing for the US to pay more attention to a certain foreign policy issue—a “do more” on a foreign policy issue that some members of Congress feel is being neglected. I'll give an example from my own experience on this.
A decade ago, I served as a fellow on the Tom Lantos Human Rights Commission in the House—this is the body with the charge of elevating attention to human rights in Congress—and in that role, I was supporting the work of Congressman Jim McGovern, who is the Democratic co-chairman of that Commission. And I assisted him as he and some like-minded members of Congress spearheaded the enactment of a law called the Magnitsky Act, which placed sanctions on Russian government officials who had committed major violations of human rights. This legislation was entirely an initiative of members of Congress. It was resisted by the Obama Administration because the Administration thought it would antagonize Russia and hurt U.S. relations with Russia. But Congressman McGovern and his allies on the Hill pushed it through and Obama signed it reluctantly because it had so much support in Congress. This type of thing happens regularly—there is congressional entrepreneurship on foreign policy on certain issues that are priorities for particular members of Congress. There are members of Congress who really care about certain issues and they push for more attention on those issues.
Kevin Kosar:
Your example is a good one and actually spurred me to remember that, in more recent years, we've seen Congress lean in on the issue of the cruelties towards the Uyghurs in China, for example, and on a whole variety of trade-related issues. And as you referenced, the idea of sanctions being a frequent tool that Congress leans in on felt to me that they were way ahead of where the president was.
Jordan Tama:
I think that's exactly right. The Uyghurs is an excellent example of that. Congress passed legislation imposing sanctions on China for human rights abuses against the Uyghurs. This was not something President Trump would have wanted to do, and Congress has passed similar bills targeting Chinese human rights abuses in Hong Kong.
Even though our recent US presidents have had tough stances toward China, these are bills that presidents have not been enthusiastic about because they want more flexibility. They don't want Congress to mandate these laws that bind their hands because then the president doesn't have the flexibility of being able to negotiate and wield the levers of carrots and sticks with regard to a foreign government. Congress in these cases is often restricting the president's flexibility, and that's a common source of tension between Congress and the president.
Kevin Kosar:
Absolutely, and it gets at that difficult matter of democratic accountability. It's understandable a president would want to have an absolute free hand to be able to cut a deal. Negotiations are messy—the president’s going to be negotiating with a country on multiple topics where issues are linked and decoupled, so they might well bristle at anything that comes in and curbs that authority. At the same time, foreign policy is ultimately American policy, and there's got to be some sort of democratic accountability, and that's what the legislature is for.
Jordan Tama:
That's absolutely right, and this is a question I ask my students often, “Are we better off with a more active Congress or with a dominant president?” And I think this is the tradeoff: a more active Congress makes foreign policy more accountable to the American people, more representative of the wide range of views of the American people. On the other hand, the president is often more attuned to the overall national interest. Sometimes there’s tension between what might be in the overall best interest of the United States and what might best represent the views, perspectives, and interests of particular parts of the American population that are represented most effectively in Congress. So this is a real tension and trade-off.
I don't think one answer is more right or better or more important than the other, but I think tension is at the heart of our system and it really comes through in foreign policy in particular.
Kevin Kosar:
Certainly that trade-off between what's good for the nation as a whole versus localities. We saw that issue relitigated or debated again when we had this effort to renegotiate NAFTA. The argument was, “Whatever great things it did for the nation as a whole in the aggregate, the costs on particular populations (e.g., textile workers, etc.) were too high, so we need go back and change the agreement to get the trade off to work a little bit better.”
Jordan Tama:
Right. Yeah, that’s right.
Kevin Kosar:
So as a kid I remember hearing the phrase, “politics stops at the water's edge,” and I don't remember if the context was in discussing the United States at war or if it was just a more general phrase that was used to justify the president having a freehand in foreign policy. You use those words in the title of one of your books, as listeners heard. Do legislators tend to curb their divisions to present a united front to the world, or is this more an ought statement—an executive wish that politics would stop at the water's edge, but they just don't?
Jordan Tama:
It's more the latter. It's an ought statement. The notion that politics stops at the water's edge has been expressed often in discussions of foreign policy since the early Cold War days. It was really in the early Cold War when that phrase became commonly used. It was in the context of proponents of policies of containment toward the...
The topic of this episode is, “Can Congress access classified information?”
My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.
We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Daniel, welcome to the podcast.
Daniel Schuman:
Thanks so much for having me.
Kevin Kosar:
I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?
Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?
Daniel Schuman:
Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.
Kevin Kosar:
Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?
Daniel Schuman:
We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.
Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.
But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.
But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”
One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.
There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.
Kevin Kosar:
From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.
Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?
Daniel Schuman:
That's a good question.
Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.
There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.
But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.
So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is provisioned, they often don't have staff support to help them understand what it is that they're looking at, which is fundamentally problematic.
Kevin Kosar:
The matter of access—actually being able to see it—brings up a basic question of where do members of Congress get to see it. And I'd be remiss if I didn't mention an infamous moment that occurred during the second Bush presidency where some folks in Congress wanted to get some information on things that were happening in the Middle East post-9/11. And when they spoke to the executive branch and the president's people and said that they wanted to learn about this topic and see the classified information, they were informed that if they wanted to see the information, they had to meet over in an executive branch building. And by the way, you would not be able to bring in a notepad, a pencil, or anything else. The fact that the executive branch is actually physically and digitally where this material rests for the most part means that the people in the executive branch have control—it's in their hands.
So when Congress does get to see this stuff, how do they see it? Are they always stuck going over to the executive branch? Or can they see it somehow in the Capitol or their offices or something else?
Daniel Schuman:
That’s a really good question. It depends on the level of classification and other sort of other things as well.
Materials that are at a low level of classification, you're actually allowed to send it by US Mail. Things that are at low levels of classification, a member can obtain it and they can keep it in a safe—there's a special GSA approved safe where they can keep those matters—then you sign it in and sign it out. That's also how it works in the executive branch, which kind of explains some of the leaks that you see. At higher levels, there are these special rooms called the SCIF, which are basically Faraday cages—they're designed to be impervious to surveillance. There’re armed guards and you go into these rooms and you can look at the documents. Sometimes the person from the executive branch might bring it over and have it chained to them. There’re also a number of classified email systems (e.g., SIPRnet), where—in theory—you can email people, ask questions, and get a response. But while the executive branch's network is widely available throughout the executive branch, in Congress, they limit how many people you can email. So there're all sorts of weird limitations in terms of your ability to reach out and ask people questions. Congress largely gets the short end of the stick.
Your example is a good one, but my favorite example is when [former Senator] Jay Rockefeller was briefed in the early 2000s on the unlawful domestic surveillance program that the Bush administration had stood up, they told him that he couldn't tell anybody else, that he couldn't have staff advise him. So the only memorialization of this is a note that he wrote to himself in pencil along with the file that was kept in wherever they did the briefing that basically says, “I think this is unconstitutional, but I'm not allowed to talk to anyone else, so I'm putting my objection here.” And that was it.
This, of course, leads to another problem, which is, “Okay, the president has told you of this thing. Who else can you tell? Can you tell your fellow members of Congress? Can you release this information to the public? Now that you've got it, what can you do with it?” Members are often not willing to do anything because they're following the advice of the Office of Legal Counsel at the Department of Justice, which reflects the perspectives of the executive branch and not what the law actually is.
So you go through great lengths to get access. You don't always have the context for what you're looking at. You're often told that you can't have staff support or the staff that are supporting you are not your people. Then there're restrictions in terms of what you can do with the information that you've received, which doesn't work well at all in a representative democracy, but that's the system that we have.
Kevin Kosar:
Yeah, the Rockefeller example is a juicy one because if he's hearing something and thinking to himself, this is unconstitutional, as a guy who took an oath upon taking office, part of which is, “I shall uphold the Constitution,” you would seem to have an imperative to speak up.
But setting that aside, there certainly have been incidents where members of Congress have proudly released classified information, not just leaking it on the down-low to media and giving it a little spin to create the narrative they want, but just letting it fly. The example that comes to mind for me was when Alaska's Mike Gravel basically went on the floor of chamber and just put it in the public record. Do you remember that incident?
Daniel Schuman:
I thought it was in his subcommittee. Like, there's video of this, right, where he's like crying as he's reading parts of the Pentagon Papers, I think they were, into the record. Because he thought that that was going to be the end of his career.
Kevin Kosar:
And of course it wasn't. He was not locked up in a cage by the executive branch for releasing this information. Yet so many members do think that the sky will fall upon them if they do this sort of thing in the open.
Daniel Schuman:
It's funny because he found an interesting way to do this. As you know, there's Speech or Debate Clause protection. So if you do things as part of your official duties, you can't be prosecuted elsewhere for it. If you read it into the record, that's fine. In the text of the bill—I'd love to see someone leak classified information in a bill or a resolution, but that has never happened. But in theory, that could be considered an official duty. But if you put in a press release, you're fair game. There is a mechanism for the release of information the executive branch has deemed classified, which is that the House Intelligence Committee or the Senate Intelligence Committee can put forward a resolution that ultimately is passed by the chamber through a very long convoluted process to release information to the public. That's only happened, to my knowledge, only once and it happened in the House. That doesn't declassify the information, so you're still not allowed to look at it if you hold the clearance, but it actually did release the information to the public.
And it's problematic because only the Intel committee can do it. You have to play “Mother, may I?” with the executive branch. You pass a resolution that goes to the White House and they say, “We'd like to release this.” And the White House is like, “You can't release this.” It's like the Passover story, just being denied again and again. So then they pass the resolution, it goes to the chamber, and the White House gets an opportunity to weigh in again. Then they can have a secret debate, in which they can decide whether to release this information.
Just one more point that I find interesting. In the 19th century, the Senate largely operate in closed session for treaties and executive nominations because of the idea that this information should be confidential and so on and so forth. And what happened is that the press would get their hands on draft treaties and draft legislation all the time. Today, Congress largely does not operate in secret on the floor; it will do things in the committees. Many parts of the executive branch operate largely in secret, and we see information released all the time; sometimes officially because the White House views it as useful to them, and sometimes unofficially because you have leakers in the press motivated by good reasons or bad, or because the information is stolen, lost, or has other problems. It's interesting how much of our understanding of the world is shaped by information that the executive branch did not want released, but ultimately was beneficial to our democracy to know what was going on.
Tom Blanton over at the National Security Archives says that there shouldn't be that much information that's classified and what's classified should be highly protected. We live in the opposite situation where there's a lot of information that's classified and the protections for it aren't great. I would just add that our best accountability mechanism, which is the legislative branch, is the one that is more thwarted than anybody else in terms of getting access to this information that they need to do their jobs.
Kevin Kosar:
Yeah, having mentioned, what happens when classified information gets—not formally declassified, but—just released in some way, shape, or form, I feel obligated to mention this little story on the weird situation it creates for the...
The topic of this episode is, “What does the U.S. Government Accountability Office do?”
To answer that question we have Gene Dodaro. He is the eighth Comptroller General of the United States—that means he is the head of the U.S. Government Accountability Office (GAO). He has held that position since December 2010. Prior to becoming the top dog at this government watchdog agency, Gene held other executive positions at GAO, including Chief Operating Officer. Remarkably, Gene has spent a half of a century at the agency. So, with all that experience I can think of nobody better to ask the question, “What does the Government Accountability Office do?”
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Gene, welcome to the program.
Gene Dodaro:
It's a pleasure to be with you, Kevin.
Kevin Kosar:
Let's start at the very beginning. GAO was created a century ago. Why
Gene Dodaro:
GAO was created in 1921—right after World War I. The government had created a large debt during that time in order to promulgate the war, and there was concern about having a better, more disciplined way to handle the federal government's budget process. In the same legislation in which we were created, the Bureau of the Budget—which is now known as the Office of Management Budget (OMB) in the executive office of the President—was also created, and the very first requirement was put in place for the President to submit a budget annually to the Congress. Then GAO was placed in the legislative branch in order to provide a check and balance on the receipts and expenditures of federal funds and the proper application of those funds to meet the intent of the appropriation legislation for the Congress. So it was an arrangement put in place to provide more fiscal discipline to the federal government's budget process and execution.
Kevin Kosar:
At that time, GAO had a different name, which to some degree reflected its more limited mission at the time. What was it called back then?
Gene Dodaro:
It was the General Accounting Office. That's what it was when I first joined GAO in 1973. But at that time even, we were doing more than accounting, but that was our original name—the General Accounting Office.
Kevin Kosar:
It seems that...
The topic of this episode is, “What is the Congressional Research Service, and what does it do?”
The guest of this show is me, Kevin Kosar. I spent a little over a decade at the Congressional Research Service (CRS) working as a non-partisan analyst and as an acting section research manager. Subsequent to my time at the agency, I was one of the individuals who advocated that Congress make CRS reports available to the public and not just legislators. I’ve also written about CRS and the other legislative branch support agencies, like CBO and GAO.
But it would be weird for me to ask myself questions and then answer them, so I asked my AEI colleague, Jaehun Lee, to serve as my interlocutor.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.
I’m your host Kevin Kosar and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
All right, Jaehun, take it away.
Jaehun Lee:
Let's start simple. What is the Congressional Research Service?
Kevin Kosar:
The Congressional Research Service is the rare government agency where its name actually accurately describes what it does. It is a research and reference service for Congress. Congress is its lone client. CRS is an agency in inside the Library of Congress. So it is a federal government agency—not some sort of private sector research outfit—and its job is to support Congress and to do so by providing nonpartisan research, analysis, legal opinions, and just about anything else that Congress may require.
You think about Congress, it's comprised of regular Americans—anybody can run for Congress and anybody can become a congressional staffer. And when those people come to Washington DC, they're suddenly saddled with this immense responsibility of governing: they have to make laws, they have to oversee executive agencies, and they have to respond to lots of constituents. They have to receive interest groups who come through their doors, making demands of them related to policy and spending.
Nobody who enters that position is fully equipped to handle it. We're all amateurs when it comes to governing, and CRS plays a critical role in helping those folks govern. So if you're a brand new legislator and you're trying to figure out, “How do I introduce my first bill? Where do I even get this thing drafted?” You can call up CRS and they'll say, “Okay, here are the steps. Here's how you should reach out to legislative counsel within the chamber who can actually put your ideas into a template and grind it through.” They can help you on these sort of things. They can teach you the basics of legislative procedure: what's a filibuster? How does a congressional budget process work?
They also are a giant resource for facts and nonpartisan—and this is key, nonpartisan—analysis. Everybody in DC in the private sector to one degree or another has an angle, a perspective. Often, especially when you're talking about interest groups or lobbyists, they have specific policy goals and they are going to make arguments to persuade you to pick their policies or to support them. CRS...
The topic of this episode is, “Does the Senate still work?”
To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.
So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.
I'm your host Kevin Kosar and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
Welcome to the program.
Martin Gold:
Thank you for having me, Kevin.
Kevin Kosar:
The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”
Martin Gold:
A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.
But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.
The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.
Kevin Kosar:
I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?
Martin Gold:
I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.
The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.
It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.
Kevin Kosar:
Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?
Martin Gold:
The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.
You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended the Senate rules was in 2013.
Here's another thing to note—and you alluded to this—in the House what the minority thinks about the rules change is irrelevant because the majority will just pass the change it wants to pass. In the Senate, it only takes a majority of senators voting to change the rules. However, there is a special requirement to end debate on the rules change. We're talking about formal amendments to the rules. There's a special requirement that says you've got to have a two-thirds vote to invoke cloture and end debate on the rules change. So what does it mean? It means that if you're going to get an amendment to the rules of the Senate, the majority cannot steamroll the minority. They're going to have consensus with the minority. The last time we had a rules change in the Senate, I think the vote was something like 86 to nine for the rules change.
So what does it mean? What’s it show? It shows that when Senator Reid was then the majority leader sought the change, he had to negotiate the change with the minority and gain consensus from the minority leadership. If they did not have consensus from the minority leadership, the vote wouldn’t have been 86 to nine. There would have been a substantial amount of dissent, so much so that I doubt seriously they could have ended debate on the change. So not only do the rules continue over in the Senate, but because of minority rights that exist in the Senate in ways that do not exist in the House, the minority has something to say about the content of the rules change.
Kevin Kosar:
Just to go a little bit further for our listeners on this issue of rules and how a chamber operates, if the Senate doesn’t frequently change its rules, does it change other things about how it operates? You have a switch in party control of the Senate, going from McConnell to Schumer. Do they have written agreements between the parties about how committee resources will be divvied up, for how other things will be done? How do they coordinate?
Martin Gold:
They have organizing resolutions at the beginning of the Congress. How many members are going to serve on what committees? What’s the ratio of minority to majority membership on the committee? What about the resources of the committee? We just had a situation in the last Congress that was quite uncommon with the 50-50 Senate where committee resources were divided absolutely evenly. It’s normally a two-thirds versus one-third division on staff that can be, for example, determined to be partisan staff as opposed to a purely administrative staff, things of that sort. So they have a negotiation that gives you an agreement on organizing resolutions and when those ratios are agreed to and then the members are assigned, that’s all part of a big negotiation. So that is a normal thing. It happens every two years.
But I thought, Kevin, that you might be going someplace else with that question. So if you’ll permit me to answer the question you didn’t ask, we’ve talked here about formal amendments to the standing rules, yet procedures do change and they’re not always changing by formal amendments to the standing rules. So if you think about it this way, the Constitution gives the Senate, like the House, the power of self-governance. How do you manifest that power? Well, the rules of the chamber are one manifestation of that power. You set up rules to govern yourself. Unanimous consent agreements, which they enter into all the time in the Senate, are another manifestation of that rulemaking power. Expedited procedure laws like the Congressional Budget Act provide a process for considering budget resolutions and budget reconciliation bills. Those expedited procedure laws are another example of the rulemaking power. And a fourth example, and quite important, is precedent, the precedents of the chamber.
Now, precedents most often interpret language in the rules—they give texture to that language. However, precedents will sometimes outright contradict the rules. And some will say, "Well, how can a precedent contradict a rule?" Because the precedent, like the rule, is an exercise of the rule-making power. Those exercises stand on equal footing. The latest exercise in time is the one that prevails. For example, Senate Rule 22 says that to end debate to a normal cloture motion, not on a rules change, but a normal cloture motion on a nomination takes 60 votes. But because of precedents that were set for every nominee except for the Supreme Court in 2013 and in 2017 on the Supreme Court, it only takes a majority of senators voting not 60. The rule still says 60; the precedent contradicts the rule. The rule was never amended formally, but the precedent is what governs because the precedent of 2013 or 2017 is later in time than the rule of 1975.
So when we talk about how the Senate governs itself, the examples of those precedents were not an example like the one I gave of bicameral negotiation and agreement. They were examples of the majority party at that moment pressing down—or maybe you could say, oppressing—the minority of the moment. So in the first case in 2013, it was done by the Democratic majority, and in 2017 it was done by the Republican majority. So you’re in this kind of rough position. You have a set of rules that people can and should be expected to live by, but it is also correct that there is not a rule that you can write that will withstand the will of a willful majority to write a precedent that could contradict that rule.
Therefore, we come to the great unwritten rule, which is the rule of self-restraint. Any majority has the power to contradict anything, past rules, precedents, anything. But whether they can do it and whether they should do it are two separate questions, and the great question for Senate governance now and I think going forward is the degree to which self-restraint will triumph over the temptation to rearrange the rules to serve your immediate political purposes.
Kevin Kosar:
That very nicely sets up my next question, which really speaks to the issue of the episode in a straightforward way, which is, the Senate has various constitutional responsibilities such as considering treaties and nominations and a whole lot more. How well is the Senate performing these responsibilities today? Is it doing better or worse than it did when you first worked in the Senate?
Martin Gold:
When I first worked in the Senate—now, we’re going back over 50 years because I started working there in 1972 for a five-term senator from Oregon, Mark Hatfield—the Senate of those days was a four-party Senate, even though you only had two parties. But it was a four-party Senate with—if I can use the terminology of those days—liberal Republicans, conservative Republicans, liberal Democrats, and conservative Democrats. There were many fewer examples of party-line voting. Instead, you had cross-party coalitions that often formed and were sometimes moved around and so forth. As people executed their constitutional responsibilities, you didn’t have the polarization. You had, I think, because of the absence of that polarization, a greater degree of self-restraint. You didn’t have the tribal atmosphere driving people to creative procedural solutions that would serve political ends. That was the Senate that I knew when I first started.
This Senate is very much a two-party Senate, not a four-party Senate. You do have people on, let's say the left end of the Republican caucus and you have people on the right end of the Democratic, but nevertheless, there is a fundamental homogeneity in both caucuses. So the Senate, obviously, is not going function exactly as it did. You're going to have more party line voting than you had. You're going to have a greater degree of aggressiveness both in the exercise of minority rights and also in majority rights. Just to give you an example, cloture motions used to be very uncommon. Maybe they’d be a dozen in a year, something like that. Now there are 20 times that in a Congress. You now have hundreds of cloture votes in a Congress.
If you don’t have unanimous consent to move something, which is almost inevitable, it’s going to require cloture, 60 votes in order to move something. So you not only see the 60-vote threshold imposed on cloture votes, you see it imposed on unanimous consent agreements, for example, that say, “Well, we won’t make you run through the cloture process, but we will make you adhere to the cloture threshold. If that amendment is going to pass, it’s going to need 60 votes. If that bill is going to pass, it’s going to need 60 votes.”
Cooperation in the modern Senate often takes that form. “We’ll let you avoid the cumbersome cloture process”—and it is a cumbersome process—“We’ll avoid the cumbersome cloture process and allow you to move things more rapidly, but...
The topic of this episode is, “Why is congressional oversight important, and how can it be done well?”
To help us tackle this subject we have Elise Bean. She is the Director of the Washington Office of Wayne State University’s Levin Center. Elise spent 30 years in Congress working as an investigator for Sen. Carl Levin (D-MI) and for the Senate Permanent Subcommittee on Investigations. Elise handled investigations, hearings, and legislation on matters involving money laundering, offshore tax abuse, corruption, shell companies, and corporate misconduct. She is also the author of the book, Financial Exposure: Carl Levin's Senate Investigations into Finance and Tax Abuse (Palgrave Macmillan, 2018). So who better to have on the show to discuss the topic, “Why is congressional oversight important, and how can it be done well?”
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.
Welcome to the program.
Elise Bean:
Thank you for inviting me, Kevin.
Kevin Kosar:
All right, let's begin with something very fundamental. What is Congressional oversight, and who in Congress can do it?
Elise Bean:
Well, Congressional oversight is when members of Congress, on a committee or individually, ask questions and try to find out: What are the facts? Is a program working? Is there really an abuse? If you want good government, you need good oversight because things change over time and what worked at one time doesn't work at another. That's what Congressional oversight is.
Kevin Kosar:
Yeah, we should dig into that a little bit. I think often Americans don't like to see politicians fighting amongst themselves, yet the legislative branch, last time I checked the Constitution, says that Congress makes the laws, Congress decides where the money is to be spent, but they're not the ones who actually do the execution of the law. They're not the ones actually spending the money. So does that seem to imply some sort of constitutional obligation to engage in oversight?
Elise Bean:
So the Supreme Court has said that that's exactly true, that if Congress can't do what it's supposed to do under the Constitution, unless it has some facts… I mean, wouldn't it make sense—if you're going to change your program or decide where money's going—that you have informed decision-making based on the facts? In fact, there's a 1946 law that requires all Congressional committees to do oversight within their areas of jurisdiction, and that's because they want you to find out what the facts are before you start to pass laws, give out money, and approve nominations.
Kevin Kosar:
Right. And as you hinted at earlier, when Congress says, "Hey, here's a new program we authorized and here's some new money for it, go out and do well, executive branch," sometimes the executive branch doesn't follow Congressional intent. Sometimes a program may not work as it was hoped. So Congressional oversight, we shouldn't just view it as kind of a response to some bad thing reported in the newspaper where Congress has to react, right? Rather, it sounds like it's something that they should be kind of engaged in as a matter of course.
Elise Bean:
Well, there are two kinds of oversight. One is what you were just talking about, routine oversight, where you look at the laws within your jurisdiction, see how they're working—and God knows a lot of times they don't work well—and what can you do to improve them. Other times there's a scandal, there's an earthquake, there's a hurricane, and Congress reacts to that scandal or to that event, tries to find out what's happening, and—maybe—how Congress can help.
Kevin Kosar:
Yeah, I mean, it seems inherent to the concept of representative and responsible government that you've got to have that oversight component there. Otherwise, you get money spent on things that don’t work, and the tap will never be turned off and taxpayers will be aggravated, to say nothing of scandals not being addressed and bad behavior being punished—or at least curbed so it doesn't repeat.
Now, some listeners of this podcast, when they hear the words Congressional oversight, they might flinch, in part because there's a tendency amongst the media to show oversight happening in the form of a hearing with a member of the dais whose face is getting red and they're getting all worked up—it's a political conflict, often a left and right conflict. That stuff happens, but that is certainly not the whole of Congressional oversight. There's bad oversight. There's good oversight. What does good oversight site look like?
Elise Bean:
Well, to me it's when there's a good-faith effort from both parties to try to find the facts. It's a complicated world out there and getting consensus on the facts is sometimes really hard. But when you do it, it creates a foundation for change. And when you think about it, Congressional oversight is all about affecting change. We want to improve laws. We want to address abuses. It's about fixing problems. But Congress isn't the executive branch. They can't prosecute anyone. They can't throw them in jail or fine them. It's all about policy changes. And we're talking about policy changes, good oversight—to me—involves people who have really fundamentally different worldviews. That way, they challenge each other. They look at the facts differently. They look at more facts, and the end result is something that is more thoughtful, more thorough, and certainly more credible if you have both parties involved.
Kevin Kosar:
Yeah, and that brings up the question of oversight and what it looks like. Again, it's forgivable that folks might think, oh, oversight, it's hearings. It's the guys on the dais asking the questions, the witnesses at the table, and that's oversight. But that's just part of a much bigger process. What does that overall process look like? What are the steps of that process?
Elise Bean:
You're absolutely right, Kevin. The hearing is sort of at the end of the process. When you start it, it's first fact-finding. What happened? Get documents, do interviews, maybe go visit some sites, visit victims, and find out what happened to them. That's the fact-finding phase. The second phase is you write it up because if you don't write it up, nobody knows what you ever found out. So that's often a report or a memo or a letter writing up what you found. Then you have the hearing. If it's important enough, you have a public hearing. But then there's a fourth stage which is as important or more important than the rest, which is doing something about the problems that you uncovered. So it's a very long process, four stages. That can take a year. It can even take two years.
Kevin Kosar:
Yeah. Going back to the beginning of the oversight process, how do you pick what to oversee? When I think of Congressional committees and the sheer breadth of their jurisdiction, they often have multiple agencies, and every agency has tons of programs and et cetera, et cetera. Where to begin? How do you choose amongst all these competing priorities for oversight? How do committees do that?
Elise Bean:
Well, that's the most important issue of all because you can't do a lot in a year. I mean, the most you could do is maybe once a month, and then you don't have any time to really investigate. The really best investigations, you usually do two or three a year. And to pick those, what usually happens is the staff makes some suggestions to the chairman of the committee or to the ranking member of the committee, and they decide out of that selection what they're going to do. So you think about, what promises has that member of Congress made to their constituents? What are some of the biggest problems in the subject area they have? Has there been a scandal or has there been some event that really needs to be addressed? And you have to just make some pretty hard choices about what your priorities are.
Kevin Kosar:
I can see that. It would have to be a negotiation amongst a number of competing goods with different criteria thrown into the mix. You mentioned the first stage of once you pick something, getting the facts. And you can do that through interviews and requests for documents. How easy is that, whether it's reaching out to the executive branch or the private sector? In your experience, how responsive do they tend to be when you say, "We want these documents from this file or this person, or we're insisting these guys come over and talk to us, not in a hearing, but just talk to us as staff." How tough is that?
Elise Bean:
It's not easy. I'll just tell you that. It's a very difficult process because you're investigating people quite often that don't want to disclose what they've been up to, and you have to try to approach it from a lot of different ways. You might talk to the victims, you might talk to their competitors, you might talk to law enforcement. Maybe somebody litigated against them, and you can find some files that way. A lot of people resist, and we just have to look at President Trump as probably an extreme example of saying, "I'm going to fight every subpoena. I'm not going to respond to any request for information." Most people don't go that far. Most people do cooperate with Congress because they understand they have an obligation to do so by law and that it's good for all of us for government to work better. But getting documents, getting interviews, it's a tough process.
Kevin Kosar:
I have to ask, I mean, especially with some of the big investigations you were involved in, the ones that were very long, very thorough, how do you manage all this information coming in? And that duty, I presume, falls almost entirely—if not entirely—upon the Congressional committee's staff. The paper, the recordings, the interviews you do—all this is data. How do you manage all that stuff?
Elise Bean:
Well, one thing you do is you get computers. I remember we had one bank that we were investigating. This was Goldman Sachs during the financial crisis. They actually gave us tens of millions of documents, and we actually had to get hard drives and set up an entire computer system just to take in all those documents. We called it “the ocean.” And every day for the next three months, we went swimming in “the ocean.” We had search terms, we had various people we wanted to look at, and we just went through those documents nonstop for three months. After that, we then did three months of interviews because once you identify the documents you want, you think you know what happened, but you don't know what happened. And you have to talk to people who are directly involved, and you just have to take it step by step. To be honest, it isn't rocket science. It's more persistence and just doing the job that needs to be done.
Kevin Kosar:
Yes, I have heard that there is a tactic by those who are being investigated, which is kind of the opposite of stonewalling. Instead, they'll just—
Elise Bean:
Right. Flood the zone.
Kevin Kosar:
Flood the zone with documents and materials. And when I think about the size of some Congressional offices, if they're sending them over in paper format, I could imagine that could be a real challenge.
Elise Bean:
Nobody sends in paper anymore. We used to have paper. I remember when we were investigating Enron, we had 800 boxes of documents, and we had to find rooms just to store them. And then our staff would get out with little dollies, put the box on the dolly, take it back to the office, and go through it. But these days it's almost all online, electronic documents.
Kevin Kosar:
All digital, that no doubt creates its own challenge.
You referenced the term “subpoena,” which I'm sure many if not all of the program's listeners have heard before, and maybe they even know that it's Latin for “under penalty.” Is the subpoena the real big tool for ultimately forcing compliance, whether it's agencies or private sector firms, to Congressional committees' inquiries, or is it just one amongst many tools?
Elise Bean:
It's a very important tool. That's because a lot of times in investigations you want to follow the money. That's the key. To follow the money you need to get bank documents. To get bank documents, they won't give them to you unless you give them a subpoena. But if you give them a subpoena, they'll turn over all of those documents you need to follow the money. To get an interview, you can try to do subpoenas. Sometimes people give you a hard time, you have to go to court. Then it all slows down. So subpoenas are important, but they're far from the only tool.
Kevin Kosar:
What other tools are there? I mean, I would imagine that if somebody was in trouble that maybe they would think, "Huh, I don't really want to talk about this, but maybe the guy who was really doing bad stuff, I can put him under the bus. So that gives me incentive to go in there and talk and have my say, and maybe they'll show me some mercy." But you tell me. What other tools have you got to get what you need?
Elise Bean:
Well, a lot of regulated entities like banks, securities firms, and financial firms, don't want to be seen as resisting Congress. They want to be seen as cooperative. And I think there is almost no case where a financial firm actually took Congress to court and tried to get out of a subpoena. It happens very, very, very rarely. So we had one case where an accounting firm, KPMG was really not turning over any documents, and somebody told the press. It was not us. We think it was somebody within KPMG. We didn't want people to know when they were cooperating or not cooperating. That's not a good message to give out. But somebody went to the press and disclosed that they had not been cooperating with Congress. There were a bunch of articles written about it. And then we heard from people inside KPMG, they had a big meeting with all the managing partners and all the people who were partners in the accounting firm. They got together and said, "We do not like this look. It's not a good look for us." And the very next day they started turning over documents to us.
Kevin Kosar:
Going public and damage to reputation and embarrassment and besmirchment of the name. Interesting, interesting. That makes perfect sense, especially for a private sector firm and one where it might be privately held.
Elise Bean:
And that have regulators. Their regulators don't want to hear that they're not cooperating either.
Kevin Kosar:
Ah, the regulators. Yep. Is there a possibility of bringing pressure to bear through appropriators? Do people who are investigating also happen to have seats on the Appropriations Committee and might be able to use the power of the purse?
Elise Bean:
That's true for federal agencies. They do have appropriations, and that is another tool that you can use. But the appropriations process is very strung out. It's very controversial. We never used that tool. We found it was just too difficult to try to go after somebody on an appropriations basis. And a lot of times because an agency isn't doing well or has problems, if you cut off their money, they just do worse. So that's a theoretical way that you can go about it, but it's not actually used very much, in my experience. But they might want something else. They might want cooperation on a program or something else they need, and you can certainly help them with it or hurt them getting whatever it is they want. So that's another tool.
Kevin Kosar:
We've talked a lot about how and why oversight should happen and what good oversight looks like. So I wonder if—for my closing question—you'd be game for drawing upon one oversight effort you were involved in during your lengthy career that really kind of illustrates how you do it, from snout to tail. How do you do good oversight?
Elise Bean:
Well, we did a lot of really fun things. But let me just choose one that had to do with offshore bank accounts. And this one started because we had two informants. They didn't know each other. But they came into the office about four months apart and told us about banks that had been opening up offshore bank accounts for US clients and hiding the money from the IRS. We ended up having a hearing about both banks. We got names from them of Americans. We looked into what the Americans were doing. We got documents and we had a hearing. At the hearing, one of the banks was UBS. They sent somebody from Switzerland, and he began his testimony by saying, "We want to apologize for our past acts, and we're never going to do it again." We had no idea they were going to say that. We were quite surprised. I think it wasn't really because of our investigation, but because they were also being investigated by the Department of Justice. Soon after the hearing, they had a deferred prosecution agreement. But regardless, they announced the fact, they admitted all of their wrongdoing at our hearing.
Had a very big impact on the offshore world because this was a very big, powerful Swiss bank, and it was sort of a big crack in Swiss secrecy. As a result of that, the House passed some legislation that applied to non-US banks, and essentially it said, non-US bank, if you open up an account for US person and you don't tell us, we're going to impose an excise tax on your earnings in the United States. And since most foreign financial institutions had either treasuries or bonds or stocks here in the US, it was a very credible threat. Somebody...
The topic of this episode is: “What are the job descriptions of representatives and Senators?”
To answer that question, we have Dr. Casey Burgat. He's the director of the Legislative Affairs program at the Graduate School of Political Management at George Washington University. Dr. Burgat also has had stints at the Congressional Research Service, and he worked with me back when I was at the R Street Institute. Recently, he and Professor Charlie Hunt authored the book, Congress Explained: Representation and Lawmaking in the First Branch. Casey has been studying Congress and how it operates for years, which makes him a great person to ask the question, what are the job descriptions of representatives and Senators?
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
Dr. Casey Burgat, welcome to the program.
Casey Burgat:
Thanks for having me.
Kevin Kosar:
It's not unusual for Americans to grumble about Congress and to complain that these elected officials are not doing their jobs. But last I checked, there're no official job descriptions for the positions of representative and Senator. So in thinking about what these guys are supposed to be doing, I think we should probably start with the US Constitution. It certainly has some clues.
Casey Burgat:
Yes. Always, always start with the Constitution. It takes us back to the Founding. It sets the framework for how we're supposed to think about a lot of these institutional questions. This is one of them.
The Constitution does provide at least some clues, but definitely not as many as we assume are in there—especially in regards to the actual duties of Senators and representatives. It does give eligibility requirements of who can serve: you have to be 25 years old to be in the House, 30 in the Senate, seven years a citizen, etc. But after that, it gets surprisingly and oftentimes frustratingly sparse in terms of what individuals are supposed to do once they're elected. We have to look more broadly and deduce our expectations of job descriptions.
We can take some hints about what the individual members are supposed to do based on what the Constitution says that Congress as an institution—and the individual chambers—are tasked with. So Congress-wide, all legislative powers are granted to Congress. It's right there at the top—Article I, Section 1—no debate about it: Congress is the legislative branch. Then, they itemized what other powers Congress is supposed to have: to declare war, coin money, and—Kevin, I know this is for you—establish post offices, etc. We know that they're supposed to do that. Then each of the chambers has its separate roles: the House deals with revenue legislation, impeachment, etc. The Senate has advice and consent on treaties and nominations, and exclusively conducts the impeachment trials that the House sends them. Because Congress and the individual chambers are constitutionally tasked with these types of duties, if they don't do them, no one else will—at least in theory; in practice, we know it's not always that simple.
So given that the Constitution gives them these duties—both as an institution and as individual chambers—we can at least somewhat deduce that they are part of their constitutional job descriptions. But that's about where the Constitution runs out of the details on exactly what these 535 powerful members are supposed to do every single day. In fact, the vagueness of the Constitution is intentional. The Framers explicitly punt on a lot of these specifics that we often assume they've detailed for the individual members and Congress as an institution.
For example, the Constitution says things like “each House may determine the rules of its proceedings,” so it's left up to the members to decide how to operate and organize. This means they have to decide things like what—if any—committees to have, how to elect leaders (if they will have leaders), and how to process its business through procedures, especially in regards to legislation. Despite us thinking that it's an unbending, unmovable, and slow-operating institution, Congress has changed these things over time to suit the wants and needs of its membership.
But getting back to your original question about the frustration, this ambiguity and letting Congress figure out the details of the job on its own and changing things as they see fit has absolutely contributed to the public’s frustration with Congress. It's not like throwing a job posting up on Indeed of “Senator” and “representative.” It's up to all of us to decide exactly what these powerful people should be doing with their powers and their hours. And when we don't agree, we inevitably get frustration because you can't be everything to everyone at the same time. This is nothing new and has been a constant challenge for members since the beginning.
Kevin Kosar:
Americans also tend to have conflicting feelings about representatives and Senators. On the one hand, they'll say, "You guys just need to get things done." On the other hand they'll say, "Why aren't you deliberating more? Why aren't you bargaining?" And then on another hand, they'll say, "You need to stick to your principles and quit doing all that compromising and horse-trading." The very nature of the body of Congress itself—that it pulls these people from all over the place with different interests, and throws them into a big soup bowl together—seems to create its own theoretical problems with the expectations we should have for members.
Casey Burgat:
Absolutely. We are full of contradictions and it really helps to admit it. Then we can get past the lazy answer of what they're supposed to do—the bumper sticker version of all this stuff—and have conversations about what Congress is supposed to do and what's possible given all those contradictions baked right into the system.
Every few months we'll see a survey of Americans saying the vast majority of us—90% of us—say we want Congress to get something done, find common ground, compromise on things, etc. That's the lazy version. When we get down to the individual incentives of who these people represent, the thing you might want to compromise on is the thing that I deem as a principle that is uncompromisable. And in fact, the minute that my representative compromises on an issue like that, I'm looking for someone else to take the job.
We see this baked into campaign platforms where candidates will say this explicitly. "Send me there to stop them. Send me there to stop President Trump or President Biden.” Then this message is spun as standing up for principles. This just gets to the conflict that we've had since the beginning. We take all of these constituencies—all of these collective action problems—elect some people to be our voice, and say “Good luck.” Then we blame them when we don't feel represented on the one thing that really matters to us. It is just an incredibly hard job that leads to unrealistic expectations, which—in turn—lead to frustration that is easy to capitalize on. It's an impossible job, and I'm sympathetic to the members who have to navigate this every single day.
Kevin Kosar:
You just mentioned something that's important, which is that we have Senators whose job it is to represent whole states, whereas you have representatives who are supposed to represent districts. At the same time, they both come to Washington, DC and they're supposed to address matters of national concern—not merely local or parochial—which is another tension within there.
Let's set that aside and go to another thing that pulls at us when we think about the role of representative and Senator. Your book mentions these classic terms from political science—viewing the job of the legislator as being a delegate versus a trustee. What do you mean by these?
Casey Burgat:
Political scientists have helped us try to create a framework where we can quickly see the frustration with members of Congress as they attempt to impossibly satisfy everyone with every single issue at every single moment. The framing creates two classifications of members.
The first is a delegate model, where members of Congress should do exactly what their constituents want them to do with no variation. As the representatives of the people, the individuals we gave our vote to should represent the will of their constituents. They're effectively given instructions on how to vote on issues, what to care about, what not to care about, and it's their job as the person in power to go do exactly those things. Then there's this other idea—the trustee model—where members are the professionals who see these issues every single day. They talk about them, they live them, and they have access to much more information. For a ton of issues, there's no possible way that we the people can have an informed viewpoint because we're out there living our lives. We have kids, mortgages, jobs—we don't want to pay attention to politics to this degree, so we elect trustees. We want them to act as our trusted representative and we trust that they will use their best judgment to make decisions on our behalf.
These both sound good, but they are not the same things. One is practical and one is theoretical. There're lots of things that—if we are being honest—we don't know enough about or even care enough about that lawmakers have to vote on. There’s no way that we can give them instructions on all of these issues in a way that is filterable and aggregated up. Even the smallest districts in the country are hundreds of thousands of people. There's not going to be unanimity in what they agree on, let alone unanimity on intensity of how much to care about this. It's the representative's job to represent the will of the people on all things, and try to make these impossible calculations of what to care about, by how much, and then consider the trade-offs that are inherently built into the policymaking process. Again, this leads to frustration with our members, where people think, ‘They're not representing us on this issue at this time in the best way, they're not fighting hard enough, they're compromising too much or not enough.’ It’s impossible to satisfy everyone all the time.
Kevin Kosar:
It occurs to me that one thing that was on display not terribly long ago—when the House was attempting to choose a new Speaker—was the issue of partisanship as implicitly being part of the job, according to some Americans. Namely, you heard people saying like, "The GOP is embarrassing itself. They all should vote unanimously in favor of Kevin McCarthy for Speaker. The fact that they are showing open dissent is a sign of dysfunction. They should do their jobs, pick McCarthy, and move on." Yet at the same time, we often hear the refrain of, "It's always Democrats versus Republicans, and they're always playing politics. Why can't they just focus on the issues instead of partisan identification?" This seems to be another contradiction in our ideas about what these guys are supposed to be doing.
Casey Burgat:
Understanding voter sentiment and what motivates voters to pay attention is a very hard thing to do. It’s hard to get voters to care enough to pay attention healthily and contribute to the conversation, rather than just add volume to it. It’s hard get them to show up to vote—to say nothing of volunteering for a campaign or showing up to local political efforts. It's really hard to get people to pay attention past the sexy cable news topics that're generated for you to pay attention and keep your eyeballs on certain content. Based on what we know about voters, the best way to get most people to pay attention is to appeal to their ideological interests—whether they have them or not—and to lean into their in-group versus out-group tendencies. And this is where it quickly gets very sociological—an “us versus them” mentality.
We send our members to be a part of “us.” If they're representing “the other” too much, then—all of a sudden—we need to look for someone more like “us.” That cycle warps these incentive structures when you think about what the institution is supposed to be and the type of products that it can reasonably produce. So there's definitely a partisan expectation for a lot of voters for their representatives to get to DC and represent those interests. Candidates are part of the problem, too, because they lean into this. They say, "I’m going there to represent your interests. I am explicitly not going to be a compromiser or give up on my principles." That has downstream effects on what's possible in an institution and what the institution decides to focus on. Instead of legislating when you can't reasonably get compromise—because that will cost you your job—you do what else you can do. You provide oversight, investigate, use your resources to paint the other side as corrupt or unpatriotic or incompetent as a means to get more of your leaning in-partisans effectuated and more of your partisans elected to office. There're these contributing factors that just create a doom loop of partisanship because we expect our members to be partisan. They told us they would be.
Kevin Kosar:
You used the word “sociological,” which brings up one more thing: voters frequently judge their representatives and Senators based upon these kind of group identifications. You will have a Senator who will style himself as the person who is speaking for the forgotten blue collar American. You will have legislators who come to Congress and say, "I was sent here by African Americans and I am a member of that community, so my job is to look after their interests first." It seems there's this whole pluralistic aspect that gets poured into this job description.
Casey Burgat:
A hundred percent. Let’s limit the universe to three issues for the sake of this example. We have issue representation where we say, "Okay, there're these three issues. I need a lawmaker to represent what I believe on these three issues." That's one version of representation. There's also demographic representation, where it matters that the people elected to the halls of Congress look and talk like us, come from where we come from, experience our same experiences, etc. There's something to be gained by having demographic representation—independent of issue representation—whether it's gender or religion or race or ethnicity. It's really hard to have full faith in an institution that only looks like one segment of the population.
All of this stuff matters to create an institution that we can look at, see ourselves in, and know that if we're not paying attention on each and every issue, we at least know that the people who are can relate to us. So when you only have rich white dudes in there debating topics and issue areas that rich white dudes fundamentally can't know, it contributes to our frustration. Think of abortion rights or single-mom issues, public education, healthcare, daycare, etc.—it really matters independently of how you come down on these issues. You can be represented perfectly on all the issues, but if they don't look like you, think like you, act like you, talk like you, come from where you come from, you’ll still have questions about their effectiveness as a representative body.
Kevin Kosar:
And you mentioned that there's kind of issue representation versus group or identity representation, and those often overlap. We often see members of Congress who will be accused of not being truly Black, or, being told "You're a woman. The right to an abortion is a woman's healthcare right—a human right. But you as a woman are against it, so you are basically acting like an old white dude and you are not representative of we women." The issue content gets poured into the identity content too.
Casey Burgat:
It’s another sign that you can never be enough of whatever it is you're trying to be to satisfy everyone, which may be—depending on where they stand—too much for other people. For instance, you care too much about women's issues, or you care too much about the wealthy. For most people, this will break down pretty cleanly on ideological grounds. Even then, it gets complicated by these identity factors where, for some people, you're not enough, and for the other side of the aisle, you're too much. So there's no great line to be, and you're automatically screwed from the get-go.
Kevin Kosar:
And looping back to the matters of districts and states and the sort of interests that flow from them, if you're a Congressman from Kansas, your interests in agricultural policy may differ versus if you’re a
The topic of this episode is: "What is the congressional debt limit?"
To answer that question we are once again speaking with Philip Wallach. He was the very first guest on this podcast, where we pondered why we need a Congress. Phil is a senior fellow at the American Enterprise Institute, and the author of the book, Why Congress, which was published by Oxford University Press in 2023. Phil also has written previously about the debt limit, which makes him the right person to ask: What is the congressional debt limit?
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
Phil, welcome back to the program.
Phil Wallach:
Thanks for having me back.
Kevin Kosar:
Let's start by getting clear on what we're talking about. There are deficits and there is debt. How do these two things differ?
Phil Wallach:
It's a stocks versus flow kind of thing. Each year, we have spending and revenue—in almost all years in recent memory, we have more spending than revenue. That creates a deficit. So the accumulation of all of the past deficits is the debt. So the debt is our total of all the spending we've done minus the revenue we've taken in, and it is now officially north of $30 trillion.
Kevin Kosar:
So when the Treasury needs to issue more debt, it's got to sell bonds—basically, these IOUs that say, "Please give us money that we can spend now, and we'll pay you back later." Is that essentially what's happening when we're taking on more debt?
Phil Wallach:
Yeah. A bond is a legally obligating instrument, and debt put out by the United States government is considered the lowest-risk kind of debt instrument in the world. So the government is not just saying, "If we feel in a good mood, we'll pay you back,” but, “we are legally obligated to pay you back with interest." That's very valuable to investors. And of course, United States bonds form the gold standard of collateral used not only in this country but around the world in the global financial system.
Kevin Kosar:
So this leads us to an important point, which is that an executive agency called the US Treasury that is issuing debt, but it doesn't do it simply at the behest of the President. The President can't say, "Well, let's just issue as much debt as we want on this day of the week or during this year." We have a law that limits the amount of debt; that is, our legislature has a role here.
We keep finding ourselves—with some frequency—in a situation where Congress will run these yearly deficits where they're spending more than the revenue coming in, and the debt grows and grows. Then, when we hit this legally mandated limit, Congress has to vote to pass a new law so that the limit is set higher so that more debt can be issued.
So let's just turn back the clock. This practice of setting a debt limit by law: why do we have it, and when did Congress first start doing it?
Phil Wallach:
Okay, so go back to the Constitution. Article I, Section 8 lists Congress's powers and pretty clearly gives the power of the purse to Congress. So Congress is responsible for making decisions about spending and taxation, and it's also, therefore, responsible for making decisions about financing deficits.
Through the 19th and early 20th centuries, whenever the Treasury wanted to sell debt, Congress would specifically vote to approve every single bond issue. Now, it didn't really think very hard about the way it did that; the Treasury Secretary pretty much came over and said, "This is what we'd like," and Congress generally said, "Okay, that sounds all right with us." But it was approving every single bond issue.
Now we come to World War I, and the federal government was spending money like never before, and Congress started to feel like this was too much of a burden for it to have to approve every single bond issue. So instead, in 1917, it put in place a ceiling, a limit. So up to this amount, Treasury can issue bonds as it sees necessary, and then once it hits that amount, it's going to have to come back to Congress. Congress will have to raise the ceiling, and the process involves the legislature again. But they put in place a dollar limit, and periodically raised that.
Somewhere around World War II, it took a modern statutory form. And ever since then, Congress has been raising the debt limit periodically, because we keep accumulating more debt such that if we didn't raise the limit, the Treasury would find itself unable to service the debt (i.e., unable to meet all of the obligations that Congress has incurred).
Kevin Kosar:
Is the United States unusual in having this debt ceiling policy where the legislature has to enact an increase to the debt periodically?
Phil Wallach:
Yes. It's not a normal thing for countries to have. In most countries, debt issuance seems to be thought of as a ministerial function of the Treasury Department, and not something that the legislature involves itself in so much. This is another aspect of America having an unusually powerful legislature that gets involved in more activities than legislatures in most countries do. But it is fairly clearly rooted in the Constitution that the US Congress has to be involved.
Now, it could just raise the limit really high. It could put in some sort of default rule that as long as we've passed spending laws, we're automatically authorizing the Treasury to sell enough debt such that we can spend all that money that we have voted in approval of. But we've never done that yet, so the debt limit has been the way we've coped with this congressional involvement for the last century.
Kevin Kosar:
It's worth pausing here to point out that the function of spending seems to have three big legislative steps. Congress passes a law to authorize spending on a program, an agency, etc. Then, Congress passes another law to appropriate the actual dollars that the executive agency can spend. But if the aggregate amount of those dollars exceeds the amount of revenues, you're going to have to take the next step to borrow. And in the olden days, as you referenced—a hundred years ago and earlier—Congress would just regularly pass these things ad hoc.
But that became such a frequent thing, it probably made very little sense to spend that much time on the floor of both chambers pushing those bills through. So they just set a higher number and put it there. That still is a third step. So instead of doing this third step every few weeks or every few months, every year or so we have to go through this debt limit situation.
Phil Wallach:
And it's not always so newsworthy, because sometimes neither party is all that interested in fighting over it—Congress puts through a raise of the limit in a bipartisan manner, and life goes on as before. So it doesn't have to be a moment of drama.
But ever since the standoff in 2011 especially, there's been a lot of attention to the debt limit, and a lot of sense that this is just a fight waiting to happen every time we come up against it.
Kevin Kosar:
We often hear the demand by some elected officials—presidents, members of Congress, etc.—that they want to "clean debt limit increase". What do they mean? And are these "clean increases" the norm?
Phil Wallach:
So a clean increase would be if legislators introduced a bill that was very short and very simple, and all it did was raise the amount of money that the debt limit is set at. Or something they've resorted to in recent years is: instead of choosing an amount, a dollar amount, they suspend the limit until a certain date. And that's a different way of getting at the same thing of saying, “We're going to be able to issue the debt we need through this time period instead of up to this amount.” And so Congress has sometimes passed bills that are more or less “clean increases.”
I wouldn't say that's the norm, though. Most of the time, whoever is not in the White House uses debt limit raises as a chance to hold the White House's feet to the fire a little bit on spending that they don't like, or on debt accumulation generically. If you go back to 2006, for example, the Democrats gave the George W. Bush administration a bit of a hard time on raising the debt limit then. It wasn't a big fight, in the end; the Republicans and Democrats got together and passed it in the end. But for example, Senators Joe Biden and Barack Obama, both voted against that increase as a way of showing that they were unhappy about some of the spending that the Bush administration had put through.
So historically, going back many decades, the party out of the White House has used it as a way of raising some protests. Some perennial fiscal hawks have used it as a chance to raise alarms about the growing debt in America, so usually, there's some kind of provision that needs to be attached to show, ‘we're concerned about the debt’ along with raising the debt limit. That's the norm, I'd say.
Kevin Kosar:
I think it's worth pulling back here for a sec and noting to listeners that when a bill is brought up for a vote in Congress, that bill is frequently comprised of multiple pieces of legislation that have been bargained out. They're put together as a package deal to build a majority. And other instances, a bill may be brought to the floor, but there's a shared understanding that other bills are also going to come hot on its heels, and they're going to pass. So they're not formally packaged together, but they're understood to be put together. And that's how you build the majority. So you can have a clean debt increase in theory, but you could also have another bill that's going to be coming in right behind it that is a product of bargaining with whoever is demanding a side deal of some sort.
Having said that, are these debt increase standoffs a bad thing? Is it bad for the legislators to bargain over this topic, seeing as debt and fiscal responsibility are important issues?
Phil Wallach:
It is a really strange way of trying to get control over our fiscal trajectory. It seems like the spending and revenue decisions that we make are the things that actually set the course of the debt. And then coming on the back end and arguing over whether we should raise the debt limit is kind of a strange way to say "that's how we should change the trajectory" because, in some sense, we all know that we have to raise the limit. We're not going to let the country default on its debt. And so it's a strange bargaining game where everyone knows that the outcome is preordained, at least in that aspect of it.
So the counterpoint, the reason why I would say a lot of fiscal conservatives say "We need to fight over the debt limit today and in the future" is that it's pretty much the only gut check we have in the system right now. We have the annual appropriations process, but that only gets at about a third of federal spending. A lot of federal spending is on autopilot at this point. Our budget process, which is supposed to force us to take stock of where we're going on an annual basis is—pretty much by all accounts—broken. It does not serve that sort of big-picture function, whatever else it may do. And so the moments when we bump up against the debt limit and we all know we have to raise it, they create the time when we could all get together and think about what's happening with the United States’ accumulation of debt, and what we need to do to change the path we're on.
Certainly, a lot of Republican legislators are very distressed about the fiscal path that we're on and want to do something about it. But again, it's a strange negotiation to have where, at the end of the day, everyone knows we have to raise the limit.
Kevin Kosar:
That's clear. Our current spending and revenue-raising practices are what are creating the deficits, and the compilation of deficits is what creates debt and brings up the debt limit as an issue. And so it seems sensible that we should just deal with that other problem.
But of course, the issue is we have this 50-plus-year-old Congressional Budget Act, about which everybody agrees that Congress is just not following the act. Reality and what the provisions of the laws say are just far apart. The incentive structure is all screwed up, so nobody's following it.
But to replace it is a huge lift. You have to get a law through both chambers. It means a lot of people's oxes are going to be gored. You've got appropriators, they don't want to give up their power. You've got Congressional Budget Committees. There are just a lot of players that you'd have to get. So the debt limit, to some degree, is like a proxy for that. And it's easy because it's a straight vote. It’s a single piece of legislation and you can take a symbolic stand on either side of it that might align with party branding or something like that. Is this dynamic, in some way, similar to the whole periodic fights we have over shutting the government down?
Phil Wallach:
Well, I think you hit on it when you said this is an opportunity to make a symbolic statement. I think that's, in a sense, the problem with the way that we do things now, which is that we have these fights around this largely symbolic matter and we don't actually force ourselves to get to the substance in any searching way. I think it's so much easier to let things go on the way they are going than to figure out a way to reduce deficits and debt. It's just so much less resistance.
And we don't have an imminent fiscal crisis in the sense that we're not drowning in our interest payments right now. I think the inflation of recent years actually makes the problem a little less acute, but we don't have any incentive to buckle down and fix things. And these problems get worse year by year when we think about where we'll be in about a decade when we've run into some very big problems with funding Social Security and Medicare under the current arrangements. And we're going to have a whole lot more debt by then because—these days—we run these roughly trillion-dollar deficits every year. It's an ugly picture, and we need to find some way of getting at the substance of it.
And the folks who are enthusiastic about debt ceiling fights think that the debt ceiling is the tool that we can use to get at that substance. I'm just a bit skeptical. I think the track record over the past few decades when people have zealously pursued some of these debt ceiling fights is not good. We haven't stopped accumulating debt. We haven't gotten to the substance in any really meaningful way. That's what worries me.
Kevin Kosar:
Should we just give up on these big battles around the debt limit and just either repeal the need to have one, or just set it at a gazillion dollars? Or is there something else we should do?
Phil Wallach:
Gazillion is not a real number, Kevin, and so that might be legally problematic.
I'm inclined to think that we should work hard to take the debt limit off the table, but—in the process of doing so—put in some other mechanism that really forces us to reckon with the debt and to debate the debt in a meaningful way on an annual basis. But it's not entirely clear what that mechanism would be, and revamping the whole budget process, as you alluded to earlier, is a really big lift.
But I think we need to squarely confront the fact that the current system is broken. The current system includes this debt ceiling element that really doesn't fix everything, causes real distractions, and of course causes this risk that maybe we might default on our debt, which would be really perverse. So to my mind, we need to push for some better way of handling our fiscal processes. We do need to recognize that things are broken now and that we're on a bad trajectory. Just having more debt ceiling fights doesn't really seem like a way of getting to a better place.
Kevin Kosar:
Philip Wallach—author of the book, Why Congress—thank you for explaining to us the Congressional debt limit.
Jeff Pickering:
Hello, this is Jeff Pickering, Director of Academic Programs here at AEI, and host of the Campus Exchange podcast. I want to take a moment to tell you about AEI's 2023 Summer Honors Program. This annual program is a unique, all-expenses-paid experience for undergraduates to study the pressing issues of our day with AEI scholars and other policy experts. This program will bring a couple hundred undergraduates from campuses across the nation and the world for weeklong seminars taught throughout the month of June.
Some of the courses we're offering this June will cover “The Changing Nature of Warfare,” taught by AEI's Kori Schake; “Polarization and Pluralism” with David French of The New York Times; and “The Foundations of Democratic Capitalism” with AEI's Michael Strain. In addition to time in the seminars, students will also have opportunities to connect and network with other students, young professionals, and other experts across the political and policy spectrum.
If you are a current college student or someone who may be interested, head on over to aei.org or Google "AEI Summer Honors" to learn more and apply. Applications are due March 15.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcast, and TuneIn. We hope you'll share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. Once again, thank you for listening, and have a great day.
The topic of this episode is, “What do congressional committees do?”
My guest is Dr. Maya Kornberg. She is a political scientist in the Elections and Government Program at the Brennan Center. Dr. Kornberg leads the center’s work related to information and disinformation in politics, Congress, and money in politics. Maya also is the author of Inside Congressional Committees: Function and Dysfunction in the Legislative Process (Columbia University Press, 2023.) All of that makes her the perfect person to answer the question, “What do congressional committees do?”
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.
Dr. Kornberg, welcome to the podcast.
Maya Kornberg:
Thank you so much for having me. I’m excited to be here.
Kevin Kosar:
Since its earliest days—more than two centuries ago—each chamber of Congress has had committees and used them for lawmaking, oversight, etc. Why committees?
Maya Kornberg:
As you noted, committees have been essential institutions in Congress since its inception. One of the reasons for this is that Congress is a big organization with an enormous number of issues to handle. So committees act as sub-organizations that can help Congress perform specific duties. Congress delegates work through its committees, so they also serve as indicators of how Congress is apportioning responsibility and resources. And in terms of power within the chambers, committees help to decentralize power, and encourage and give space to more legislators from both parties to be active participants in the policymaking process.
Kevin Kosar:
You note in the book that committees have four core functions: deliberation, education, theater, and personal connection. What do you mean by these terms?
Maya Kornberg:
These are the core functions that legislative scholars have identified as key roles of committees in legislatures, generally.
First and foremost, scholars identify committees as a deliberative forum within Congress. Woodrow Wilson once wrote that “The House both deliberates and legislates in small sections. It delegates its legislative and deliberative functions to stand in committees.” And what does deliberation mean? As you and your co-authors touch on in Congress Overwhelmed, deliberation is really about weighing the different aspects of a question and reasoning through the different causes and consequences. This is a crucial part of any policy formulation, and something that committees handle in Congress.
Traditionally, committees are where research is brought in and technical learning takes place, and that’s what I mean by education. Congress is a body in which many lawmakers have to legislate on specialized topics that they don’t have any training in. Committees give them the space to learn—they are a place where lawmakers gather information and educate themselves about specific policy areas.
Committees are also one of the major bipartisan institutions in an increasingly partisan Congress, so they form a space for members of Congress to cultivate personal relationships with each other and with the witnesses. Members from both parties come together on a regular basis in committees for hearings and other regular work. And this forms a space then for potential personal connection between members.
In my book, I tell the story of a particularly notable friendship that came from a committee, and that is the friendship between longtime senator, Dick Lugar, whom I interviewed before he passed away in 2019, and then-senator, Barack Obama. Republican Senator Lugar told me that Barack Obama was frequently one of the only members left in the committee when Senator Lugar was chairing, and would sit there and ask questions and be engaged. Also as a result of their joint membership in the committee, they went on several trips together—what’s known as CODELs, or congressional delegations—and were really able to maintain a friendship and fruitful working relationship across party lines for many years after, that originated in their joint membership in the Senate Foreign Relations Committee. So that’s what I mean by personal connection.
Finally, committees can act as what Woodrow Wilson terms “the theater of debate upon legislation.” One of the staffers that I interviewed in the book explains that sometimes the purpose of a hearing is to give a public forum to discussions that largely happen behind closed doors. This public function of committees allows members to publicize issues. It’s really a public-facing function and it can help them to mobilize support for different policy issues that they might be working on.
So these four functions—deliberation, education, personal connection, and theater—are core universal functions of committees. And my book then explores under what conditions each of these functions might be most likely in Congress today.
Kevin Kosar:
Since you’ve teed up the question nicely, are the committees of today still doing all four of these things: deliberating, education, theater, personal connection? Does it vary? Does the mix—the kind of cocktail of these four functions—change from committee to committee?
Maya Kornberg:
As I note in the book, there’re certain parameters that lead a hearing or a committee to be more likely to fulfill different functions. Today, after a series of developments over the past several decades, committees are—by and large—less autonomous, less specialized, and less deliberative than they once were as a result of decades of having staff cut and having their power taken away and usurped by party leadership.
Still, committees can serve these functions. I note in the book that, in particular, the educational platform of committees can be most likely—and this might seem counterintuitive—the further away you are from a vote or from talking about a specific piece of legislation. I spoke to members who explained that the closer you are to a vote, the more likely you are to descend into partisan tribal warfare.
But in terms of what I call agenda-setting and general education about topics—this is really important because these members of Congress still need to be legislating about all of these very specialized topics—committees can still serve this general education function. I tell the story in the book, for example, of the genetic engineering hearing in 2015, which was at the very beginning of genetic engineering science and development of that science in the United States. Members talked about this hearing as one in which—at the very beginning—this policy issue becoming something that they would need to regulate, fund, and legislate about. They were able to learn about this because it had not yet been colored by partisanship in the way that many issues are.
I also note in the book that personal connection can still occur, but under specific circumstances. As we know, Congress is becoming increasingly partisan. Frequently, the only time that members have to connect with each other is within the rancorous halls of Congress because many of them don’t live in Washington; whereas before the mid-90s, they did and they had plenty of opportunities to form personal connections. One of the things I talk about in the book are opportunities like field hearings, like congressional delegation trips that committees facilitate that allow members to socialize with each other and form personal connections outside of Congress.
So again, these kinds of hearings and committee work might allow for more personal connection than we see in traditional scripted and partisan hearings within the halls of Congress. Similarly, the committee hearings that we see in Congress with all the cameras all teed up might actually be the place for more theater. But when they’re out on the road—with for example, the Agriculture Committee’s Farm Bill Listening Tour, listening to farmers—there might be more space for actual interaction and less theater.
So, again, in the book, I explore when each of these is most likely, arguing that they all take place in Congress, but we can learn from when they take place in order to think through what reforms can help facilitate more of these different functions in Congress today.
Kevin Kosar:
Yes, and a point you make very clearly in the book is that hearings have different purposes. Sometimes, it is just exploring an issue that they’re digging in and the hearing is probably going to be rather drab. So that’s lots of experts coming in and presenting data on this, that, and the other. In other instances, the point is to call attention to something—to get the media’s attention, to say, “Hey, here’s a thing that everybody should be asking questions about,” and perhaps wagging fingers and shame. So what you get is going to depend on what the ultimate outcomes are.
Now, you mentioned personal connection, and this was a really fascinating part of the book. With personal connection comes trust. And ultimately, for legislature to work—to be able to build a majority, to be able to create a piece of legislation—there’s got to be some trust between individuals so that they can collaborate, create a shared work project, move it through the chamber, and deal with the resistance that’s inevitably going to come—whether it’s media criticism or criticism with their own party or the other party. You talked firsthand with people who work on committees. It seems to me that the personal connections are like the secret sauce for making it work. Did I get that right?
Maya Kornberg:
Yeah. I talk a lot in the book about the crucial importance of the relationship, specifically between committee leadership and between their respective staffs—the minority and the majority staff—in crafting hearings. In my interviews with staff and with members, it became very clear to me that there are the formal rules, but there’re also the informal norms that—in many cases—trump formal rules because of the importance of personal relationships. So when the minority and the majority staff have a good relationship—and when the topic of the hearing is perhaps more bipartisan—then there is space to even create joint witness lists and to think together about creating a witness panel that exposes the different aspects of an issue and the different voices that there are to hear from on an issue. On the other hand, in the absence of good personal relationships, the minority gets the minimal notice that the hearing is happening and their one witness—which the minority is always entitled to.
And I also show, by looking at what I call “balance scores,” that hearings in which the ranking member and the chair are closer to each other ideologically—I use DW-NOMINATE scores to look at that—might yield more balanced hearings. And I create this methodology for creating balanced scores in the book, which are a way of measuring how balanced a witness panel is (how many witnesses are speaking for or against a certain topic). So really, the chair and the ranking member—both their ideological positioning but also their relationship and the relationship between their staffs—can be critical in either creating a space where there will be a balanced witness panel with many different perspectives, or a witness panel in which there is really just one minority witness there to promote the messaging of the minority party, and the rest of the witness panel is there in order to promote the messaging of the majority party.
These are the hearings that we frequently think about when we think about Congress because that’s what we see on television, but that’s not all hearings. There are many hearings in which there are joint lists, there is a real space for deliberation, and reasoning through the many aspects of the issue, but that is more likely when there is a joint approach, a joint list. And relationships are really critical in order to be having those discussions and coming together as a committee to create a hearing, to create a witness panel, and to set up the building blocks for a real deliberative conversation that can happen in committees. That is more likely when the committee comes together in that way.
Another thing that I found really interesting was one of the committees that I spoke to—in which the minority and the majority had a good relationship—would approach the Congressional Research Service with a joint question before each hearing and ask for a joint report from the CRS that they could send to all the members and the staff to prime them with the same neutral information before the hearing. Things like that really set the tone for the hearing to come and create the space for real reasoning through the different aspects and real openness to alternatives.
Kevin Kosar:
Over the past century, the power of committees has risen and it’s fallen. Today, committees are not quite the powerhouses they were 50 years ago. In simplest terms, how is it that committees’ power can grow or shrink?
Maya Kornberg:
That’s a really interesting question and I think that a number of factors shape the relative power of committees.
In legislatures, in general, parties and committees tend to act as competing organizing structures. Historically, as well as internationally, we see that the power of the two is inversely correlated. Committees tend to be weaker during periods where power is concentrated in parties and party leadership, and vice versa. And this is really the story that we’ve seen unfold over the last several decades in Congress. Party leaders and parties have usurped control and committees have lost power.
I’d highlight a few key events in that. And I think the story begins in the 1970s. It begins, of course, earlier on, but in terms of the loss of committee power the 1970s saw some key events. There was the Legislative Reorganization Act in 1970 that reduced the power of chairs, it increased the power of leadership in assigning chairs, and slashing committee staff. And these all hurt committee autonomy and committee power, and gave more power to the Speaker.
Another key moment was in 1995. Newt Gingrich comes to power as Speaker and he doubles the number of votes of the party Speaker on the steering committee, increases the hold of party leadership on committee chairs, and he further cuts staff. So we’ve really seen a huge decline in the number of staff that Congress relies on. They have several thousand fewer staff than they did a few decades ago. And this loss of staff—who are really key to helping committees specialize—along with the increasing grip of the Speaker on chair selection are really emblematic of this trend. So you have a stronger Speaker in the House right now and you have weaker, less autonomous, less specialized committees.
We also see a similar trend in the Senate. The Senate in the first half of the 20th century was known as a decentralized chamber in which parties struggled to maintain control. But deliberation declined in the second half of the 20th century because senators were struggling with a lot of committee assignments and with a rising workload. And similar to the House, committees also lost staff relative to parties. So though the overall level of Senate staff has remained relatively similar, the number of staff working under the party, and I find this statistic really crucial in understanding the story, the number of staff working under party leadership increased by 263% between 1977 and 2016. So again, we see the power flowing from committees to party leadership.
I think it’s interesting to end by noting that we are discussing this at a very interesting time in terms of this push and pull between party and party leadership and committees. We’re at a very unique moment with Speaker Kevin McCarthy coming to power. He’s a Speaker who faces the threat of the motion to vacate, and he leads—as we’ve all seen in the strife leading up to the Speaker vote—a divided party. Looking at this as a scholar of committees, I do wonder if this opens up some space for committees and committee leadership to reclaim some power because we see a weakening party leader and Speaker. And this might leave some space for another golden era for committees, but I guess we will see how that unfolds.
Kevin Kosar:
Before I close this off, I just wanted to get two quick things in. First, you may be surprised to hear that there are fewer committee staff in the House of Representatives today than there were 40 years ago. This is not a great formula, considering that government has got much more and larger responsibilities.
Second point is that we’ve seen a breakdown—particularly in the House of Representatives—of regular order. This is the sort of “Schoolhouse Rock” way of getting work done where a bill gets introduced and then it gets referred to committee, and then the committee decides what to do with it. And ultimately, it may amend it and rework it, but it gets reported out with some assumption that it has a decent chance at getting a vote. Nowadays, that’s not the way things frequently work. Instead, you have policy being made elsewhere: frequently amongst leadership, frequently with the House Rules Committee weighing in, drafts of bills being swapped in at the last moment that look different from the work product that may have come in—all of which can lead to a diminishment of committee strength.
All right, we have reached our time. Dr. Maya Kornberg, thank you for helping us better understand congressional committees and what they do in Congress.
Maya Kornberg:
Thank you so much for having me.
Kevin Kosar:
Thank you for listening...
The topic of this episode is: “Partisan polarization: Is it crippling Congress?”
My guest is Frances Lee. She is a professor of politics and public affairs at Princeton University and a top scholar on Congress. She is the author and co-author of many articles and books on Congress, and has written for popular publications including the Atlantic magazine and the New York Times. Most recently she and James Curry published, The Limits of Party: Congress and Lawmaking in a Polarized Era (Chicago 2020), which analyzes and addresses the subject of this episode—polarization in our national legislature.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.
Professor Lee, welcome to the podcast.
Frances E. Lee:
Thank you, Kevin. It's great to be here.
Kevin Kosar:
Let's start by ensuring that we all are on the same page: you, I, and listeners alike. When we speak of Congress, what do we mean by the term partisan polarization?
Frances E. Lee:
Partisan polarization has multiple meanings and I think that's probably why you began with this question.
A layman's or a dictionary definition of polarization means division into two sharply contrasting groups. Congress is clearly polarized in this sense. Congress sees much more partisan conflict. Conflict in Congress breaks down more reliably on partisan lines than it did throughout most of the 20th century. We routinely see votes that pit 90% or more Democrats against 90% or more Republicans, a partisan divide that's more deep and predictable than we used to see.
However, by partisan polarization, political scientists often mean something more technical. In its most rigorous form, the concept of polarization is grounded in spatial theory. It rests on a theorized choice space in which policy preferences are ranged on an underlying continuum from left to right. In this sense, parties become more polarized as the preferences of members become more distinctly bimodal, and as the two parties’ modes move farther apart from one another.
It's far from clear that parties are polarized in this second sense. The problem is that the issues at stake in congressional politics are diverse. On some issues, the congressional parties have moved closer together and on some issues, they've moved farther apart. There's little doubt that the post-Trump parties in Congress are farther apart on immigration than they were. There's a growing partisan divide opening up on transgender issues. Clearly, the parties are farther apart today on issues relating to the COVID pandemic than they were in March 2020.
But on other issues, the parties have moved closer together. Republicans and Democrats differ less on trade policy today than they did in the past, with the Republican Party having moved more toward a more protectionist stance under Trump. The budget deficit and government spending became less partisan during the Trump years as both parties came together around an unprecedented response to the COVID pandemic. Trump presided over a significant reform of criminal justice policy. It was bipartisan. Republicans and Democrats in Congress have worked together on foreign policy a lot over the past decade from sanctions on Russia to the huge Ukraine aid package under Biden. There's reporting in the lead-up to the congressional elections of 2022 that the Republican Party has given up on the issue of Obamacare repeal.
So have the parties moved farther apart or are they closer together? I have no idea how to characterize the parties in an absolute sense. It depends on what issue you're talking about. I'm not sure how you go about averaging across all the diverse issues on the congressional agenda to say that the parties are farther apart ideologically than they used to be. I think it's clear that Republicans and Democrats are more partisan in their voting behavior, but what that means in terms of ideology is contested.
Kevin Kosar:
It sounds like one temptation we have is to associate stark differences in voting behavior with the legislators themselves believing very different things rather than the possibility that some are simply voting strategically, voting with their crowd, or for other reasons—perhaps getting through the primaries or something. Is that right?
Frances E. Lee:
That's right, absolutely. Of course, nothing produces more reliable partisan voting than questions of procedure—who's going to control the floor agenda? The majority party supports its leadership in controlling the floor and the minority party contests it, and that continually produces party line voting. But what does that mean in terms of the party's larger ideological agendas? It's not clear. It's this contest for power over the agenda.
There’s also positioning related to elections. Elections are zero-sum, so you can cast votes with an eye toward the stance that you want to portray your party as having on an issue, rather than expecting those votes to have any effect on public policy.
Kevin Kosar:
Right. We shouldn't confuse symbolic action in some cases with the essence of the matter and assume that people have lost negotiating space that may actually exist.
I feel like those of us who pay attention to Congress have read so many articles—of one sort or another—which say we are a way more polarized Congress or a way more polarized nation than ever before, or at least in recent memory. Based on what you’re telling me, that seems to be a bit of an overstatement.
Frances E. Lee:
Intense partisan conflict is not new to US politics. I think it's probably the normal state of affairs.
The decades after the Great Depression in which an internally divided Democratic Party enjoyed nearly continuous majority status for decades was a period that was lower in partisan conflict than is typical for the whole sweep of US history. It's probably an exceptional period rather than the norm, but it tends to be the period against which people tend to benchmark the present and they say, “Well, it's more partisan than it was in the '50s or the '70s or the '80s.” So those decades then become the comparison point.
My qualitative work looking at partisanship in Congress over time suggests that members of Congress virtually always say and probably feel and believe that things are worse now than they ever have been before. They've been saying that as long as far back as I can find. They said it during the Reagan era. They said it under Clinton. They said it under George W. Bush. They of course said it under Obama and under Trump. I even found members in the 1970s telling reporters that Congress had never been as partisan as it was then. Of course, the early '70s are the nadir of partisan conflict as far as roll call voting goes, but it didn't feel that way to embers of Congress at the time.
So I tend to take all these claims that things are worse now than they have ever been before with a grain of salt. Conflict is just endemic to Congress. I'm a political scientist, not a historian, but I haven't found a period in congressional history where there wasn't intense conflict on at least some dimensions in Congress.
Kevin Kosar:
Absolutely. During the New Deal era, many Republicans were accusing the President and Democrats of destroying the constitutional order, taking over the economy, being a dictator, and possibly ushering in a new kind of American version of socialism or fascism or some sort of strongmanism backed by a potent party. That language was out there, but I think we forget it as we think back to the greatest generation in all those glorious years.
Frances E. Lee:
I think we forget it as the issues that sparked such intense conflict fade. And so the current issues loom so much larger, and we say that it's so much worse now than it was then. But I think to a great extent, it's an illusion.
Kevin Kosar:
So we say we don't want to wave away polarization and just say doesn't exist. And it sounds like you say that it certainly does exist, but it is issue-specific as opposed to a general ideological parting of ways between the parties. Is that fair to stay?
Frances E. Lee:
Well, I'm just agnostic on that question because I really don't know how one goes about characterizing all the issues before Congress in a single abstract space. We see the parties move closer together on some issues and farther apart on others. We also know that they behave in more reliably partisan ways than in the past. So that's an objective fact about life in Congress today. But how we interpret it, and what it means for the policy stakes, I think we need to view that issue by issue.
Kevin Kosar:
Right, and I suppose the only thing that we can clearly point to and say, "Hey, this looks a little different than say 50 years ago," is the voting behavior. The days when conservative Democrats would work with Republicans and push some fiscal responsibility legislation or military buildup legislation seem to have disappeared for us, but maybe not.
Frances E. Lee:
Well, what we don't see today is a party able to pick off a handful of members of the opposing party to put together a small bipartisan coalition. But most everything that becomes law today has big bipartisan support. What you see today is that policy that becomes law is negotiated between both parties—the leadership of both parties. And so when something passes, it tends to command majorities of both parties, not a majority of one party and some moderate members or a handful of the other party. But on legislating, we see big bipartisanship today. That really hasn't changed.
Kevin Kosar:
And this gets to the crux of the issue. There's so much anxiety that Congress is broken, that it just can't get things done, and therefore all power is flowing to the executive branch and the judiciary and Congress is just this awful cacophony that's not making policy. Based on your research, this caricature sounds like it’s not even remotely true. In fact, Congress is working in a bipartisan fashion and on landmark and significant pieces of legislation too.
Frances E. Lee:
That's right. I think the congressional gridlock narrative has taken on a bit of a zombie status, and it persists in the face of a lot of evidence to the contrary.
Recent congressional productivity has been quite remarkable. The COVID response in 2020 was historically vast—by far the largest crisis intervention in US history, larger in inflation-adjusted terms than the 2009 stimulus and the whole New Deal combined. You really can only compare levels of spending in 2020 with levels during war production in 1943. And this was passed in an entirely bipartisan manner.
And the 2020 Congress—so this is the Congress in the last presidential election year—did a whole lot more than COVID. It also passed an important energy environment package as part of the “Coronabus” at the end of the year, which was the most significant environmental legislation Congress had passed up until that point. It passed a large parks and conservation package, a new free trade agreement with Mexico and Canada, and interestingly, a North American free trade agreement that had the support of labor. A paid parental leave package for federal civilian workers. That was 2020.
This Congress has continued with a frenzied lawmaking pace. It was kicked off with the American Rescue Plan—a huge package only exceeded by the CARES Act that had passed in 2020—a major infrastructure authorization, a huge science and technology competitiveness law—the CHIPS Act—a huge Ukraine aid package, a modest gun safety law, and then it managed to pass another big reconciliation bill—the multi-billion-dollar Inflation Reduction Act. So I ask: where is the gridlock here?
I think that commentators tend to mistake the difficulties that parties have with passing their programmatic agendas with gridlock. When they're frustrated that their party isn't able to deliver on its platform, they say Congress is gridlocked and Congress does have a really hard time passing partisan programs.
But that's often because majority parties cannot agree internally, not because of gridlock (the ability of a minority party to block). Obamacare repeal and replace failed because Republicans couldn't get their whole party on board. The same was true of Biden's Build Back Better package that failed. They salvaged a small piece of it with the Inflation Reduction Act because not all Democrats agreed.
Even if Congress isn't passing a partisan program, it can be accomplishing a lot legislatively, which is what we have been seeing. But these achievements tend to get quickly passed over by a news media that focuses primarily on conflict and...
The topic of this episode is, “What are the Duties of the Speaker of the House of Representatives?”
My guest is Paul Ryan. Paul Ryan was the 54th Speaker of the U.S. House of Representatives. In office from October 2015 to January 2019, he was the youngest Speaker in nearly 150 years.
Prior to becoming Speaker of the House, Paul served as the Chairman of the House Ways and Means Committee. He also served as Chairman of the House Budget Committee from 2011-2015. In 2012, he was selected to serve as Governor Mitt Romney’s Vice-Presidential nominee. Paul was first elected to Congress at age 28 and represented Wisconsin’s First District for two decades.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think-tank in Washington DC.
Speaker Ryan, welcome to the podcast.
Paul Ryan:
Kevin, good to be with you. Thanks for having me.
Kevin Kosar:
Article 1 of the US Constitution states, "The House of Representatives shall choose their Speaker and other officers." How does the House pick a Speaker these days?
Paul Ryan:
The way it works is the majority party in their conference—we call the Republican body the Conference, the Democrats call theirs the Caucus—will have a vote as to whom they nominate for Speaker. That's a plurality vote—the person who gets the most votes wins. Kevin McCarthy won that, which means he is to be presented to the full House on January 3rd when a new session is sworn in and he has to get—or she, in Nancy [Pelosi]'s case—has to get 218 votes. The Democratic Caucus will also vote on who they nominate to be the Speaker. If [Pelosi] stays, they'll probably nominate her. If not, I don't know, Hakeem Jeffries or somebody like that.
A candidate must win a majority vote—218 votes—on the House floor when the new session is sworn in. Then that person is sworn in by the Dean of the House—the longest serving member—and that Speaker becomes the newly-installed Speaker for that new session of Congress. Then that person swears in all of Congress. That's how it gets started.
Kevin Kosar:
The Constitution says the House shall have a Speaker, but it doesn’t provide a full job description. In the earliest days of the Republic, the Speaker’s duty was to preside over the chamber—to be the guy who runs the meeting. Times sure have changed. What are the duties and responsibilities of the Speaker today?
Paul Ryan:
Yeah, they're endless and infinite in some ways. It is not like it was in the old days. It's a bigger Congress—there are more states than they envisioned and the government does so many more things than it used to do in the first Congresses.
You're basically the chief executive officer of the legislative branch. You oversee the entire legislative branch, so technically you have something like 12,500 employees. In a way, you’re like the mayor of the legislative branch, overseeing the legislative council, the law enforcement agency, the power plant, the janitors, etc. And you have deputies that run all of that—whom you appoint—such as the Architect of the Capital, the Sergeant of Arms. So, there's an administrative side of being Speaker of the House that most people aren't familiar with.
But you're also the head of the legislative branch. As far as the work of legislating in the House itself, you basically control the flow of legislation. You oversee your party's selection of memberships of committees and chairmanships of committees, and through your leadership team, you determine who does where, when, and how, more or less. That is, you determine what bills get scheduled to the floor. You work with the committee chairmen to make sure that they get their bills to the floor. You set the floor schedule and through the rules committee—which is controlled by the Speaker—you determine the way in which debate occurs: Are there amendments to be made, and in what order? What kind of a rule? Is it an open rule, where any amendment can be made in order, or is it a structured rule, where only certain kinds of amendments can be made in order? And by controlling the debate, you can control the outcome of that debate by virtue of the changes you allow or do not allow to happen to the legislation.
It's basically like an air traffic controller where you're doing the ground control, which is the committees—what are they doing and when are they doing that. And you're also doing air traffic control—what bills go to the floor, what bills get passed, etc.
You also have to negotiate with the Senate when they have legislation. In that case, you appoint the negotiators in conference committees to negotiate the reconciliation of legislation with the Senate, but sometimes that bubbles up to you and you become the primary negotiator with the Senate. Then you work on getting the White House lined up to pass something. So you operate negotiations—House to Senate, Congress to the presidency—and how the House curates and builds its legislation. That's the legislative side of it.
In the modern era, you’re a political person as well, because you're the head of your party for your body—for the House Republicans in my case or House Democrats in Pelosi's case—and you're probably also the top fundraiser for the party. So when you're not in the Capital legislating and managing the legislative process or the legislative branch, you're out fundraising for your party to make sure that members have the resources that run their campaigns. So it's three things: a political job, a managerial ministerial job, and then it's a legislative job.
Kevin Kosar:
And I guess implicit in what you are describing is that, presumably as a Speaker, you have to spend a lot of your time bargaining amongst the factions within the party because there's always intra-party disagreement.
Paul Ryan:
Every day. I like to have a known schedule. I like to have a method for my week, so we would start the beginning of the week with a conference with all of our members.
Every morning would include a meeting with my leadership team to see what the day's going to look like, what the week looks like, and what the long term looks like. On Wednesdays, I would have lunch with the various heads of the various factions in the House Republican conference. So I stayed very close with the leaders of all the various factions—the Tuesday Group, the Study Committee, the Freedom Caucus, and people in between. And I'd rotate various people in so that I had constant lines of communication with the various factions in our conference and in between those as well because there's a big diaspora of different types of views and temperaments within just the House Republican Conference. So the key for me was constant communication.
Early on, we would craft a jointly assembled agenda where we all collaborated and worked on creating an agenda that we believed in, which we usually assembled in our retreats or different processes. Then we would go effectuate and execute our agenda, and while we were effectuating our agenda, maintained constant communication to make sure everyone was playing the role and getting constant feedback and input from people. And it's a consensus-driven process that you had to dry. It is not a dictatorial role. People think the Speaker just dictates. Not at all. You have to forge and bring consensus to get people to unify on a common cause so that you can pass legislation because not everything's going to be bipartisan. Some of it's going to be partisan—e.g., tax reform. So that's the day-to-day thing you do, and you have to manage all of these coalitions.
Kevin Kosar:
Before television became common in the United States, Speakers of the House were relatively unknown to 99% of America. That too has changed. Is communicating with the public, to be the voice of the majority of the House, also consume a lot of time?
Paul Ryan:
Yeah. You do two press conferences each week as Speaker of the House, one at the beginning and end of the week. So it's just open for the press to shoot at you and ask you questions. But then you have a lot of strategic communication in between, which is pretty much TV, radio, and print—but mostly a lot of TV—interviews. I think that’s part of the reason I got the job of Speaker—I actually didn't look for the job, it found me.
I don't know if you know the story well, but John Boehner left because the Freedom Caucus was going to invoke this motion to vacate, and he left to spare the members of that vote. The next guy in line—who is now the next guy in line, Kevin McCarthy—at that time didn't have the votes to get it. So the consensus came to me to do it. I was the chairman of the Ways and Means Committee at the time.
I think one of the reasons I became the consensus candidate that all the factions in Congress agreed to me was partly because I was a policy guy and a policy maker, and they agreed with the policies that I had been pushing through the budget and ways means committees. But also because I had already had a stint at the national political level running for vice president with Mitt Romney, I'd already gone through the gauntlet. I already got shot at a thousand times by the national media. I already knew how to handle national media and had the thick skin for national media exposure.
That was considered a key part of the job and is today a key part of the job. You've got to be able to handle national media exposure and operate in that environment. That was not the old days. That is definitely how you do it today, though. I don't think Tip O'Neill was necessarily the most charismatic TV guy. So speakers like that—and that was fairly recent history—didn't do communications. Today, the Speaker is also very much of a communications job.
Kevin Kosar:
That's an awful lot of responsibilities, which amounts to an extremely heavy load. Who helps the Speaker get all those things done?
Paul Ryan:
Yeah, your staff—and you have a pretty sizable staff. My life has always been planned in 15-minute increments. As Speaker, you basically try to balance your time, and your chief of staff helps you design your schedule. And then you have a whole bunch of people on your staff who help you organize your times—make sure that the meetings you have are very productive and try and curate resolutions to whatever problem you're trying to solve before the meeting happens. So when you get a meeting, you can more or less finish the job of solving a problem, getting to a decision, executing something, some sort of a mission, or something like that. So you have to have a lot of staff.
But different Speakers have different leadership styles. For instance, [Pelosi] really liked consolidating power in the Speaker's office. I actually recoiled against that. Frankly, the modern Speaker has too much power. My goal was to try to decentralize power as best and as much as I could. I felt that way because I was a committee chairman who believed that I and my fellow committee members should be writing the policy on the issues in our jurisdiction. After all, we were spending all of our time in that policy area, not somebody who maybe thinks a half hour a week on this issue up in leadership. My goal was always to push power, responsibility, and communications out to the committees where the specialists actually did the job.
That's the opposite of the way the Pelosi Congress runs, and I have every belief that Kevin McCarthy will decentralize power and re-empower the committees. But having said that, all of that as Speaker—because you command so much attention—you have to also communicate what those committees are producing. You have to communicate your party's vision and views on where they're going and the various policy nuances that are in between.
But the key to me in governing the place successfully—and as the Founders intended—is to decentralize power and equip the committees with the power and agency to formulate the policy in their areas of jurisdiction, because they're the experts. They're the ones who spend day in and day out combing through CRS (Congressional Research Service) reports, GAO (Government Accountability Office) reports, IG (Inspector General) audits, and all of the rest. They're the ones that really should be setting the policy, and that to me is the way Congress ought to be run.
Kevin Kosar:
Yes, the process over the last 50 years where so much power has been traded up to the Speaker, arguably it's reached its apex, and it has some benefits. They craft bills behind closed doors and put them in front of folks and they vote it up or down. But at the same time, everybody seems to be miserable because they realize that as a legislator, they've traded away the essence of their job.
Paul Ryan:
Yeah, some people don't want to take responsibility for the choices you've made. But in a lot of it, I think it's just the consolidation of power that has accrued to the Speakership. I don't like that frankly. I didn't like it then. I don't like it now. I think a lot of it comes from the way the budget process has been basically broken. In order to address this, one of the things I got an agreement on within one of our omnibus appropriation bills was a bicameral committee on budget process reform. I put Steve Womack in charge of it for the House. So we had bipartisan members of the House and Senate to get us to a new budget process where we would decentralize power and have the budget committee and the appropriation committees actually write their bills, negotiate their bills, and pass separate bills.
Now, that Womack committee produced a great report on annual budgeting and different way of doing the budget only to be basically killed by the Democrats. I think [Schumer] and [Pelosi]—no offense to them, but they—like consolidating power. They like four corners deals. Four corner deals are where the Speaker and the Minority Leader of the House, and the Majority Leader and the Minority Leaders of the Senate—the four of them and their staff basically write a bill. I don't even think I have room on this screen to show the size of the bill—three feet thick—that funds all of the discretionary spending, well over a trillion dollars annually. And that is put together more or less by the Appropriations Committee, but molded and negotiated by those four people and their staffs. It is not how government should work. It gives far too much power to the Speakership.
I made lots of decisions. Frankly, I think I'm a smart guy. I've been around and I try to use good ethics and principles, but I made so many decisions—that I frankly shouldn't have been making—in the design of these bills and in negotiating these things. The committees with jurisdiction should be having the responsibility to make those decisions. So that's one of the unfinished businesses that I left—I tried to get it done with this bicameral committee, but it's going to have to be bipartisan.
Unfortunately, I think Democrats—whether it's because they're collectivists by nature or because they like consolidating power—don't want to participate in opening up Congress, decentralizing its power, and empowering rank-and-file members in the committee process to do its job. I think if you do, you're going to get a better product—it's going to be a more clear, accountable, and transparent government. But that is not what we have today, and it clearly takes both parties in both houses to agree on the solution on how to fix that.
Kevin Kosar:
You spent time as a representative, you spent time chairing a committee. You then spent time as Speaker, and now you've had some time away from the chamber. Drawing on that experience, drawing on your wisdom, if you had one piece of advice for an incoming Speaker, what would it be?
Paul Ryan:
Decentralize the power. Open the place up. You won’t control or predict every outcome, but that's okay. That's the sloppiness of a republic and the way it should be. So just decentralize the power and restore the institution. The institution has been attrited away to the executive branch. Part of that's the Progressive agenda. Part of that's just power consolidation. But rebuild the institution of the legislative branch, and the best way to do that is to empower the members and decentralize its power within the institution. Get the power of the legislative branch back.
Kevin Kosar:
All right. Speaker Paul Ryan, thank you for helping us better understand the responsibilities of the Speaker of the House of Representatives.
Paul Ryan:
Good to be with you, Kevin. Thanks for having me.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you’ll share this podcast with others, and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. Once again, thank you for listening, and have a great day.
The subject of this episode is, “Are elections fueling polarization in the House of Representatives?”
Polarization in Congress is a well-documented fact of life. This is particularly true on high salience issues, such as immigration and abortion. Yet the tendency of legislators to reflexively oppose policy ideas offered by the other party has bled into other, more prosaic issues. For example, in late 2021 an infrastructure bill became a bone of political contention. Republicans who voted for it were denounced by their colleagues. Nevermind the fact that the legislation might actually do good for these legislators’ constituents.
Why are there so many hard left and hard right members of our national legislature? To help us think through this issue, my guest is Andrew B. Hall, a political scientist at Stanford University. Dr. Hall has published many articles on elections and representation and is the author of Who Wants to Run?: How the Devaluing of Political Office Drives Polarization (Chicago, 2019).
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.
I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Andy, welcome to the podcast.
Andrew Hall:
Excited to be here. Thank you.
Kevin Kosar:
If I had a dollar given to me every time somebody said, “Congress is polarized because Americans are polarized,” I'd have enough bucks to take a really good vacation. The idea that America has become the land of red states and blue states, with right wing rural folks and left wing city folks, has become pretty popular. You see references to it in the press all the time. So that prompts the question—we have a polarized Congress: are voters the reason we have a polarized Congress?
Andrew Hall:
It's a very reasonable question. I don't think it has nothing to do with it. I do think it's true that some Americans have become quite polarized. Obviously, we see it play out with things like the rural-urban divide that you're talking about. But I think that there's a really important fallacy that a lot of people don't always think through when they think about Congress polarizing, which is that there's absolutely no guarantee that any change or non-change in people's opinions, will map into what congressional candidates or members of Congress say or do, because there's this intermediate step which is really important—who actually decides to stand up and run for Congress? If the people who decide to run are just systematically different from what the voters at large want, then unfortunately, what people want or what they think or how they think or how polarized they are may not have any reflection in what options they're actually presented to vote on.
So—to get back to your question itself—I think it's of course true that people are polarizing to some degree. I think it's vastly overstated. And when you look into evidence on most salient policy issues, it turns out...
The topic of this episode is, “Are members of the House of Representatives legislating in the dark?” My guest is https://faculty.utah.edu/u0844867-James_M_Curry/hm/index.hml (James Curry). He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book https://www.amazon.com/Legislating-Dark-Information-Representatives-American/dp/022628171X (Legislating in the Dark: Information and Power in the House of Representatives) (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress? Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar. And I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Welcome to the podcast. James Curry: Thanks for having me. Kevin Kosar: Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so? James Curry: So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons. First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process. Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills. So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to...
The topic of this episode is, “Who was the meanest man in Congress?” My guest is https://www.linkedin.com/in/timothy-mcnulty-61396710/ (Timothy J. McNulty), who taught journalism at Northwestern University and spent more than thirty years at the Chicago Tribune. During his years as a journalist, Tim was a national and foreign correspondent, and also an editor. He logged untold hours paying attention to Congress and its many characters. And importantly for the purposes of this episode of the podcast, he is the coauthor of a terrific book, https://amzn.to/3MlkDlV (The Meanest Man in Congress: Jack Brooks and the Making of an American Century) (NewSouth Books, 2019). Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Welcome to the podcast. Timothy McNulty: Thanks very much for having me. Kevin Kosar: Thank you for being here. https://history.house.gov/People/Listing/B/BROOKS,-Jack-Bascom-(B000880)/ (Jack Brooks) served in Congress from 1952 to 1994. He was called a number of names: the snake killer, the executioner, and the meanest man in Congress. Why? Timothy McNulty: Well, each one had a very set reason in Congress. “The snake killer” was him using an old Texas term when he went after President Ford's early budget. He said to reporters then, “Well, the best time to kill a snake is when it's young.” So that's what Ford did. “The executioner” is what Nixon told some of his aides, because Brooks had been really a driving force in the Judiciary Committee. https://www.congress.gov/member/peter-rodino/R000374 (Peter Rodino) was the head of it, but he was taking it very slow, and Brooks wanted to speed things up. So that's what bothered Nixon. And then “the meanest man” was something that Brooks had a great deal of pride in, because his questioning on the Government Affairs Subcommittee struck fear into a lot of bureaucrats and corporate leaders who were called to testify, because he didn't blanch at any kind of power or anything else, whether it was Marine Corps generals or heads of General Motors or government department heads. He just went after them. So he got that “meanest man” title and wore it proudly. Kevin Kosar: Yes, yes. Brooks himself, as you detail in your book, was a Marine, and he was in World War II. He saw many intense things and he endured a lot, both in his upbringing and before he got to Congress. But the listener might be wondering: if Brooks was so mean, how come voters reelected him every two years for four decades? Timothy McNulty: Well, of course, he looked after his district. No matter what other public pronouncements or other publicity he got, he was never that interested in being anything other than a congressman. And people recognized that. He of course brought home a lot of government money, especially for infrastructure down in Southeast Texas. But he also had his staff be very aware of constituent concerns, whether it was someone who's a mother who wanted her son to be able to come home because of an operation that she was having— He took care of things and made sure that his staff answered every letter, every message. And that's why I think— He also was a populist. This is in a very different era that you alluded to: a populist, a Democrat, in Texas! That was something that was seen as a great achievement: to be that strong and to have both conservative ideas and also very advanced or progressive ideas. He also was able...
The topic of this episode is, “What role should Congress have in foreign affairs?” My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft. Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Welcome to the podcast. Alissa Ardito: Thank you, Kevin. It's great to be here. Kevin Kosar: Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs? Alissa Ardito: Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia. And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers. Kevin Kosar: Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?...
The subject of this episode is, “What are the goals of congressional budgeting?” My guest is https://www.heritage.org/staff/paul-winfree (Paul Winfree). He is a distinguished fellow in economic policy and public leadership at the Heritage Foundation. Importantly for today’s discussion, Paul has a great deal of knowledge about congressional budgeting. He has had stints both in the White House and in the Senate, where he worked on budgeting firsthand. Paul also is the author of the book https://amzn.to/3vlBk9J (The History (and Future) of the Budget Process in the United States: Budget by Fire) (Palgrave Macmillan, 2019). So I’m very excited to be here with Paul Winfree. Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Paul, welcome to the podcast. Paul Winfree: Thanks so much, Kevin. Really happy to be speaking with you today. Kevin Kosar: My sense is that if we asked Americans, “What are the goals of budget policy?” they likely would say something along the lines of, “It involves the government figuring out what to spend money on—like defense, for example—and how to pay for this spending. Budget balance is the goal of budgeting.” While that's true, what your fine https://amzn.to/3vlBk9J (book) shows is that our government has had a variety of goals for budgeting over the past two centuries, correct? Paul Winfree: That's exactly right. One of the reasons why I wrote this book in the first place was that there's this narrative amongst budget experts in Washington, DC, these days that the budget process is broken. What I wanted to do is start to unwind that and ask both, "Well, why is the budget process broken?” but also, “How did we get to where we are today?" It might be my own bias on how I approach problems, but one of the things that helps me understand current mechanisms is also understanding how we got to those current mechanisms, rather than approaching the current problem sets as if they happened exogenously and were not predetermined by other things that have happened throughout our history. So, what I do in this book is go back all the way to the very beginning and start with colonial America, and then walk us up to today. What you find throughout our history, in looking at both budget policy but also the formation of economic policy more broadly, is that there were lots of different goals, from debt eradication, to sending signals to European debt markets that we were a viable nation that they should take seriously, to macroeconomic management. The goals today are in some ways different than the goals 250 years ago, but in other ways similar. I think we'll probably talk about that a little bit in the next half hour. Kevin Kosar: All right. Well, let's start at the very beginning, which, as a wise person once sang, is a very good place to start. When the founders bargained out the U.S. Constitution, they had objectives for budgeting, didn't they? Paul Winfree: That's right. The founding generation was very practical in a sense, and they had to be. They were involved at the beginning of a new country, and like many founders of companies today, they didn't have a lot of time to prove to the world that their model was viable. Therefore, they tried some things such as the Articles of Confederation, which permitted the federal government to borrow money. But since the Articles didn't provide Congress with the power to raise revenue, they would...
The subject of this episode is, “What is a conference committee and why are they so rare today?” My guest is https://joshmryan.github.io/ (Josh Ryan). He is an associate professor of political science at Utah State University. Josh studies Congress, the president, state legislatures and executives, as well as electoral institutions. Importantly for the purpose of this episode of Understanding Congress, Josh is the author of the book https://amzn.to/3iQ9WuP (The Congressional Endgame: Interchamber Bargaining and Compromise) (University of Chicago Press, 2018). This book examines conference committees and the other ways the two chambers of Congress come to an agreement—or not—on legislation. Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Josh, welcome to the podcast. Josh Ryan: Thanks so much for having me. Kevin Kosar: Let's start very simply, Schoolhouse Rock! style. What is a conference committee? Josh Ryan: We think of Congress as one branch of government, and Congress is actually two different institutions. The House and the Senate are separated from each other. They have almost no control over what the other chamber does. They have their own legislators, obviously. They have their own procedures, their own norms, their own committees, their own ways of doing things. And when they write a bill, even if the House and the Senate generally agree on the parameters of the bill and what's going to be in the bill, because of all these differences, they usually write two different versions of a bill. So we can think of the House as developing some version of a bill to address some policy problem. Typically the Senate takes up legislation after the House, but not always. Senators are their own people and they like to do their own thing, and they typically change the House bill in some way. So even though the House and the Senate are supposed to kind of be working together, if the bill is anything more interesting or substantive than some trivial piece of legislation, we're going to end up with two different versions of the bill. The Constitution requires that Congress can only send one version of the bill to the president, so the House and the Senate have to have some way of resolving their differences, of agreeing on the exact same language for a given bill. Historically, one of the main ways that they've come to an agreement is by using a conference committee. This is a temporary committee, so it's different than the standing committees in Congress, like the Agriculture Committee or the Armed Services Committee, which exist and are more or less permanent. The conference committee is ad hoc. It's created just to address the differences between the House and the Senate on a particular bill. The House and the Senate will each designate conferees. These are individuals usually who serve on the standing committees which dealt with the bill. And those people will go to a conference where they sit down and they try to hash out the differences between the House and the Senate version. Once they've done that, the conference committee sends the bill back to both chambers, and both the House and the Senate then have to vote on the bill again. But importantly, they can't make changes to the bill at that point, and the House and the Senate have the exact same version of the bill, exactly the same words, etc. At that point, if they both approve the bill, the bill...
The topic of this episode is, “What is the relationship between lobbyists and Congress?” My guest is https://www.jmu.edu/polisci/people/faculty-lapira.shtml (Timothy LaPira). He is a professor of political science at James Madison University and a faculty affiliate at the Center for Effective Lawmaking at the University of Virginia. Tim, I should add, is the lead editor of our volume https://amzn.to/3NuwH5P (Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform) (University of Chicago Press, 2020). But even more relevant to the subject of this podcast episode is that Professor LaPira coauthored the book https://amzn.to/35n7JUu (Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests). This makes him an especially apt person to answer the question for us, “What is the relationship between lobbyists and Congress?” Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Tim, welcome to the podcast. Timothy LaPira: Thank you for having me. Glad to be here. Kevin Kosar: Let's start very simply, with the definition of a lobbyist. Now, under the First Amendment, anyone can petition the government for a redress of grievances, as the Constitution says. So plenty of people do talk to Congress, and the executive branch and judiciary, for that matter. In fact, in my job at a think tank, I am often asked to comment on bills or testify before Congress by congressional staff or even legislators who approach me. But I'm not a lobbyist. So what makes a lobbyist a lobbyist? Timothy LaPira: This is a great question. It's one that's often misunderstood. There's many definitions of what a lobbyist is, but I tend to think of—there's two ways to think about this. First, the more comprehensive, academic version of thinking about a lobbyist. It could go by the name of policy advocate, government relations professional, policy strategist, or something along those lines. These are people who make money to represent other people's interests. Those interests are typically going to be collected in organizations, but it's not just representing those interests in speaking. It's representing those interests in the policymaking process. There has to be a connection between the private sector and the government. So that's a very broad definition. There is, further, a statutory definition, primarily through the https://www.congress.gov/bill/104th-congress/senate-bill/1060 (Lobbying Disclosure Act) of 1995, which has been updated a number of times. In that law, there's a three-test definition of what a lobbyist is. First, they have to earn money. There's a minimum amount of money that's frankly not all that much given the size of the lobbying industry. It's about $5,000 a month. Second, they have to contact more than one government official. The purpose of this in the law, of course, is not to simply capture everyone, as you suggested. They might want to call up their member of Congress and say, "Vote for the bill,” or “Vote against a nominee," or what have you. The third point of the definition is most critical and frankly controversial: the lobbyist must spend more than 20 percent of her time on lobbying services in a given three-month reporting period. Now, https://www.congress.gov/member/carl-levin/L000261?q=%7B%22house-committee%22%3A%22Rules%22%7D (Senator Levin), when he originally wrote this law—the...
The topic of this episode is, “What does the Congressional Budget Office do?” My guest is https://spp.umd.edu/our-community/faculty-staff/philip-joyce (Professor Philip Joyce). He is the senior associate dean at the University of Maryland School of Public Policy, where he also is a professor of public policy. There, Philip Joyce teaches and researches public budgeting, performance measurement, and intergovernmental relations. He's the author of many publications — far too many to recite, but I will mention one that is germane to today's podcast. Phil is the author of the book https://amzn.to/3BYPmBb (The Congressional Budget Office: Honest Numbers, Power, and Policymaking) (2011), which makes him an ideal guest to answer the question, “What does the Congressional Budget Office do?” Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Professor Joyce, welcome to the podcast. Philip Joyce: It's great to be with you. Kevin Kosar: Let's start simply. The https://www.cbo.gov/ (Congressional Budget Office), AKA, “CBO.” When did Congress create it and why? Philip Joyce: CBO was created in 1974. You have to sort of go back in time if you can. Well, probably a lot of people can't go back that far in time that are listening to this podcast, but I can. As you recall, in 1974, at least early 1974, Richard Nixon was president. There was something that became referred to as the imperial presidency, and it essentially involved President Nixon being viewed at least by many people in the Congress as overstepping his bounds, doing things like withholding funds that the Congress had appropriated. So the Congress was trying to reassert its role in the budget process. And it did this by passing something called the Congressional Budget and Empowerment Control Act of 1974, which did basically three things. It created the budget committees; it created the budget resolution, which is the blueprint that the Congress establishes for the budget; and it created CBO. Why did it create CBO? It created CBO in particular to provide the Congress with its own source of information on the budget and the economy. And why did it need to do that? Because the alternative was to rely on the https://www.whitehouse.gov/omb/ (Office of Management and Budget), which was attached to the president — and not just any president, but Richard Nixon. So the idea that the Congress was going to reassert its role in budgeting, but have to rely on Richard Nixon's OMB for information, just didn't make a lot of sense to a lot of people in the Congress. The other thing I think it's important to note up front is that according to the law, this was all to be done on a nonpartisan basis, which means that CBO doesn't work for the party in control of the Congress. It works for the Congress as a whole, and tries very hard to make sure that it is responsive to both political parties. Kevin Kosar: Yes, I should elaborate a touch further for listeners who are not familiar with this period of time, the early ’70s. After being pushed around and eclipsed by a burgeoning executive branch, one that often didn't play straight and sometimes transcended the law in its activities, Congress decided to reassert itself. It took the Legislative Reference Service and beefed it up into the https://crsreports.congress.gov/ (Congressional Research Service). They created the Office of Technology Assessment. It wrote a new law on...
The topic of this episode is, “Should we expand the membership of the House of Representatives?” My guest is https://www.aei.org/profile/yuval-levin/ (Yuval Levin), who is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. Dr. Levin is the founder and editor of the journal https://www.nationalaffairs.com/ (National Affairs), a senior editor at https://www.thenewatlantis.com/ (The New Atlantis), a contributing editor at https://www.nationalreview.com/ (National Review), and a contributing opinion writer at the https://www.nytimes.com/ (New York Times). And, particularly germane to the subject of today's discussion, Yuval recently coauthored a https://www.amacad.org/sites/default/files/publication/downloads/2021_Enlarging-the-House.pdf (report) on the topic of expanding the membership of the House of Representatives. You'll find a link to that report in the program notes. Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Yuval, welcome to the podcast. Yuval Levin: Thank you very much for having me. Kevin Kosar: The founders set the number of senators at two per state, but they did not set a constitutional cap on the number of legislators in the House. Why is that? Yuval Levin: Well, the nature of the Congress came out of a very complicated set of compromises at the Constitutional Convention. If you look at James Madison's https://avalon.law.yale.edu/subject_menus/debcont.asp (notes on the convention), well over half of the debate was actually about this question of how representation should work. And ultimately, in some obvious ways, the large states wanted to be represented by population, the small states wanted each state to have equal membership, and the decision was made, “Let's do both.” So the two houses do have intentionally very, very different forms of representation: for the states and for the people. The House of Representatives is meant to represent the public. And so each member represents roughly the same number of people. State delegations are based on the size of their populations. The difference between the two houses in that sense is very intentional, and intended to create these kind of overlapping majorities that include both forms of representation. Kevin Kosar: All right, so the Senate is supposed to represent the states; the House, the people. Now, we have 435 members in the House, and we've had 435 for a long time. When was that number set? Yuval Levin: The House of Representatives at first grew after every census. From the very beginning, from the 1790 census all the way through the 19th century, with a single exception after 1840 for complicated reasons, the House grew as the population grew. That continued to happen until after the 1910 census, at which point there was the beginning of a normal debate in the House about how much should we grow and in what way this time. That debate fell apart, and the House ultimately at that point simply didn't act. And the size of the House remained as it was after 1910. Then afterward, after the 1920 census, the House actually actively decided to no longer grow after every census and passed a law that set a cap at 435, which was the size it had reached. For most of the 19th century, the House of Representatives grew by a formula that allowed states to avoid losing seats. So as the population grew, new seats were distributed in such a way...
The topic of this episode is, “What is wrong and right with the House of Representatives?” My guest is https://danlipinski.com/ (Dan Lipinski), who is uniquely positioned to answer this question. He was a member of Congress, and represented Illinois’ third district from 2005 to 2021. He also is a political scientist — he got his doctorate from Duke University in 1998. And if that is not enough, Dan is a former congressional staffer and a socially conservative Democrat. You don’t find many of those anymore. You can see Dan’s recent writings on his website, https://danlipinski.com/ (DanLipinski.com), which includes an essay for The Atlantic titled “https://www.theatlantic.com/ideas/archive/2021/10/house-representatives-congress-filibuster-democracy/620275/?utm_content=edit-promo&utm_term=2021-10-11T11%3A00%3A57&utm_campaign=the-atlantic&utm_source=twitter&utm_medium=social (The House of Representatives is failing American democracy).” Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. Sir, welcome to the program. Dan Lipinski: It's good to be with you, Kevin. Kevin Kosar: Let's start this conversation on a positive note. You served in the House of Representatives for 16 years. What accomplishments are you most proud of? Dan Lipinski: Well, if I had to pick out one bill most proud of — I actually was able to pass about 17 bills in my 16 years in Congress — but the one that I spent the most time on, maybe the longest lasting impact, is the American Manufacturing Competitiveness Act. The requirement of that bill is every four years, the administration needs to create a strategy to promote American manufacturing. We could do a whole podcast on just what it took through five years to get this bill passed. We finally changed it to go to a different committee. In the end, after we spent five years working very hard, first it got attached to one bill, which we strategized to do, and then that bill unexpectedly got attached to an omnibus bill at the end of the year. After five long years of working on it, I was actually shocked when I saw it show up in an omnibus bill. Like I said, we could do a whole podcast on that and the strategy, and all the pitfalls, and what it took to get it through the House and finally get it through the Senate, get the president on board. It took a long time. But the first one was done in the second year of President Trump, and the second one now needs to be done early next year by the Biden Administration. So it's a plan to promote American manufacturing, kind of like the Quadrennial Defense Review, which the Department of Defense every four years needs to look at the defense department and put out a plan for the next four years. Kevin Kosar: So, you're a legislator who got things done. But as you just mentioned, it sure wasn't easy, and it sure didn't follow the script that many of us learned in Schoolhouse Rock all those years ago about how a bill becomes a law. This gets us to my next question. Let's talk about what's wrong with the House of Representatives — why it's so hard to get things done. In an https://www.theatlantic.com/ideas/archive/2021/10/house-representatives-congress-filibuster-democracy/620275/?utm_content=edit-promo&utm_term=2021-10-11T11%3A00%3A57&utm_campaign=the-atlantic&utm_source=twitter&utm_medium=social (article) for The Atlantic, you state that the House, whether controlled by
The topic of this episode is, “What differences do women make in Congress?” My guest is https://gufaculty360.georgetown.edu/s/contact/00336000014RbbCAAS/michele-swers (Michele Swers), professor of American government at Georgetown University. She studies Congress, congressional elections, and women in politics. She has written a lot of research articles and book chapters, and also is the author of two books on women in Congress. The first one is titled https://amzn.to/3ozw9j8 (The Difference Women Make: The Policy Impact of Women in Congress). The second book is titled https://amzn.to/3Ho4URi (Women in the Club: Gender and Policy Making in the Senate). And, I would be remiss if I did not mention, she is the coauthor of https://amzn.to/3kEuRT2 (Women and Politics: Paths to Power and Political Influence). Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. It is to Professor Swers we now turn to learn about women in Congress. Professor Swers, welcome to the program. Michele Swers: Thank you, Kevin. Thanks so much for having me. I'm a big fan of your podcast. Kevin Kosar: Oh, thanks for saying. Let's start with a really simple question. How many women are in Congress today? Michele Swers: So, right now you have 120 women in the House. Eighty-nine are Democrats, 31 are Republicans. And in the Senate, you have 24 women, 16 Democrats, 8 Republicans. From those numbers, you can tell that there are more women who are Democrat than Republicans. And that's because the number of women really started to increase in 1992, and people called that the Year of the Woman, but it was really the Year of the Democratic Women. It was Democrats who elected more women at that time. They had a pretty good year that year. Even in years where Republicans had good years, like 1994, they elected more women, but not a lot more women. In 2018, Democrats elected another Year of the Woman, but they elected more women of color. So there was a lot of attention to that. And that's when I'm sure your listeners know that Alexandria Ocasio-Cortez comes into the picture and Ayanna Pressley and some others. And then in 2020, Republicans did have a very good year. They went from 13 women to 31 in the House of Representatives, and they elected a greater mix of women and minorities. It was a good year from their perspective. But you can tell though that by these numbers, when Democrats are in charge, women have more access to the majority and seats of power. So women are about 40 percent of the Democratic caucus in the House, and that means they have some seniority level. In the House, on the Democratic side, anyway, committee assignments work based on seniority, so you have more women who have access to be chairs. So Rosa DeLauro, head of Appropriations, or Carolyn Maloney as the Oversight chair, Maxine Waters at Financial Services — important committees. On the other hand, for Republicans, women are only about 15 percent of their caucus. They've had a woman in the conference chair position for a very long time — obviously turnover with different women. Most recently, Liz Cheney was pushed out, and Elise Stefanik is now the conference chair. But they don't have as many women with seniority. There are not as many women who will reach those committee chairmanships when Republicans are in charge. Right now you do have Kay Granger at Appropriations. She's the ranking member, so maybe she'll...
The topic of this episode is, "What is the role of the Senate’s majority leader?" My guest is https://www.rstreet.org/team/james-wallner/ (Dr. James Wallner). He is a senior fellow at the R Street Institute and a lecturer at Clemson University. He is the author of three books on the Senate, including one titled https://www.amazon.com/Parliamentary-War-Partisan-Procedural-Legislative/dp/0472130544 (On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate) (2017). James has worked in the Senate, and also is a cohost of the https://www.politicsinquestion.com/ (Politics in Question podcast). Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. It is to James Wallner that we turn to learn about the role of the majority leader. James, welcome to the program. James Wallner: Thanks for having me. Kevin Kosar: First question. Chuck Schumer is the current majority leader in the Senate. How did he get that job? What's the process? Did all the senators get together and vote for him or some other candidate? James Wallner: Well, that's how it works in the House, where you nominate candidates to be the speaker of the House. Nancy Pelosi is our current speaker. Democrats and Republicans on the floor of the House all cast a vote for the speaker, and the nominee with the most votes becomes the speaker. And so the majority party, in effect, selects the speaker. In the Senate, it's a similar process, but slightly different, because they're not electing a speaker, they're not electing a presiding officer. The majority leader, Chuck Schumer, is merely the floor leader of the party with the most votes — so in this case, the Democrats. And it’s 50–50 right now, split evenly between Democrats and Republicans. The vice president is a Democrat, so assuming that the vice president would cast her vote with the Democrats on a tie vote — under the Constitution, she gets to do that — that means that Chuck Schumer has more votes behind him than the leader of the Republican Party, Mitch McConnell, has behind him. So he is the majority leader, McConnell is the minority leader. The way they're chosen is simply by their party colleagues in secret ballot, in a meeting that usually happens right after the election, typically in December following an election before the new Congress meets. Kevin Kosar: You underlined a point there about the difference between leadership in the House and leadership in the Senate. It sounds, at least ostensibly, that a speaker may make a claim to be the head of the whole of the House, whereas in the Senate, it sounds like the majority leader is just the partisan leader. James Wallner: Absolutely. Look, party leaders in the Senate have institutional tasks, too. They help to schedule legislation. They do a bunch of different things that institutional leaders in the House, like the speaker, also do. And the speaker is also a partisan leader, in the fact that she is selected by her majority party caucus and really works to advance the agenda of the majority party. So they go hand in hand. But there is no Senate leader. I'm reminding myself of Woodrow Wilson, where he says, "There's no leader in the Senate," and that's something that's really frustrating him. And this is what makes the Senate great. Because there's no one that presides over the Senate, who wields lots of power, whom all senators vote for, the institution has a very...
The topic of this episode is, "What is the Congressional Review Act?" My guest is https://regulatorystudies.columbian.gwu.edu/bridget-ce-dooling (Professor Bridget C. E. Dooling) of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice. Kevin Kosar: Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. It is to Professor Dooling we turn to learn about the http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title5-chapter8&saved=%7CKHRpdGxlOjUgc2VjdGlvbjo4MDEgZWRpdGlvbjpwcmVsaW0pIE9SIChncmFudWxlaWQ6VVNDLXByZWxpbS10aXRsZTUtc2VjdGlvbjgwMSk%3D%7CdHJlZXNvcnQ%3D%7C%7C0%7Cfalse%7Cprelim&edition=prelim (Congressional Review Act), a tool for Congress to abolish regulations. Welcome to the show. Bridget Dooling: Thank you so much. I'm glad to be here. Kevin Kosar: Before we get into the Congressional Review Act, or CRA, let's start with something basic. What are regulations, and why do they matter? Bridget Dooling: Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It's because there's a regulatory line there. You can't see it when you're in the drugstore, but it absolutely affects the way you live. Kevin Kosar: Yeah. Regulations really, to a degree, I guess they're specifications of laws, particular applications. Is that a fair characterization? Bridget Dooling: Yep. Kevin Kosar: Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations? Bridget Dooling: Yeah, there's a few ways. One is that you can look at legislation, because that's where Congress tells the agencies what they're allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there's a website called https://www.regulations.gov/ (regulations.gov). That's a great place to start, so if you hear that a rulemaking is coming down the pike, that's a great place to go check its status and see if it's open for public comment, for example. So that's regulations.gov. And for rules that are already on the books, you'd want to look at something called the https://www.ecfr.gov/ (Code of Federal Regulations), which pulls all that regulatory text into one place so you can read it all in one spot. Kevin Kosar: Excellent. Now our listeners know. So let's turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA? Bridget Dooling: The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule's issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can't be...
The topic of this episode is, “How has Congress evolved as an institution?” My guest is https://polisci.berkeley.edu/people/person/eric-schickler (Eric Schickler), the author of the book, “https://press.princeton.edu/books/paperback/9780691049267/disjointed-pluralism (Disjointed Pluralism): Institutional Innovation and the Development of the U.S. Congress”. It is the 20th anniversary of this classic text, which won the Richard F. Fenno, Jr. Prize for the best book on legislative politics. Eric is the Jeffrey and Ashley McDermott Professor of Political Science at the University of California, Berkeley. He is also an Elected Fellow of the American Academy of Arts and Sciences.
The topic of this episode is “How do legislators raise money to run for Congress?” My guest is Weston Wamp, who is the Founder at https://www.millennialdebt.org/ (Millennial Debt Foundation) and a Senior Political Strategist at https://www.issueone.org/ (Issue One). He hails from Tennessee, and ran for Congress in 2014. If his last name is familiar to you, that is because he is the son of former member of the House Zach Wamp, a Republican who represented Tennessee's 3rd congressional district from 1995 to 2011. Weston, like his father, knows a thing or two about how fundraising has come to be a major part of getting to Congress and staying there. And I should add that he is the host of the program, https://www.swampstories.org/ (“Swamp Stories,”) which has examined the effects of fundraising on Congress.
The topic of this episode is, “How can a new staffer survive Congress?” My guest is Mark Strand, the coauthor of the book, https://amzn.to/3g1xQDg (“Surviving Inside Congress.”) Mark is the President of the https://www.congressionalinstitute.org/ (Congressional Institute), a not-for-profit organization that helps Members of Congress better serve their constituents and that helps constituents better understand Congress. Mark has led the institute since 2007, and prior to that spent nearly 20 years working as a staffer for members and committees in the House of Representatives.
The topic of this episode is, “What does the Committee on House Administration do?” And who better to answer this question than my guest, https://rodneydavis.house.gov/biography/ (Representative Rodney Davis). He is the ranking member of the Committee on House Administration, or CHA as it often is called. He has been on the committee since 2014. Rep. Davis currently serving his fifth term in Congress representing the 13th District of Illinois, which covers a 14-county region that includes both urban and rural communities in central and southwestern Illinois.
The topic of today’s episode is, “Are earmarks good or bad?” My guest is https://www.cmc.edu/academic/faculty/profile/zachary-courser (Zachary Courser), a visiting assistant professor of government at Claremont McKenna College. He is the co-director of the https://policylab.cmc.edu/ (Policy Lab) at Claremont McKenna College, and the co-editor of the volume, https://www.jstor.org/stable/j.ctv7n0c0s (Parchment Barriers: Political Polarization and the Limits of Constitutional Order). Zach also is the author of articles on conservatism and populism, and he is the coauthor of an American Enterprise Institute report titled, https://www.aei.org/research-products/report/restoring-the-power-of-the-purse-earmarks-and-re-empowering-legislators-to-deliver-local-benefits/ (“Restoring the power of the purse: Earmarks and re-empowering legislators to deliver local benefits.”)
The topic of today’s episode is, “Can Congress budget?” My guest is https://spp.umd.edu/our-community/faculty-staff/allen-schick (Dr. Allen Schick). He is professor emeritus at the School of Public Policy at the University of Maryland. He previously has held positions at the Congressional Research Service, the Urban Institute, the Brookings Institution, and the American Enterprise Institute. Dr. Schick published three volumes with AEI press, which you can https://www.aei.org/profile/allen-schick/ (download and read), and many other books with distinguished presses. His books include, Congress and Money: Spending, Taxing, and Budgeting (1980), Making Economic Policy in Congress (1984), The Capacity to Budget (1990) and The Federal Budget: Politics, Policy, Process (1995). Dr. Schick is the dean of budget policy, and we are very fortunate to have him on the program.
The topic of today’s episode is, “How does Congress fund itself?” My guest is https://twitter.com/danielschuman (Daniel Schuman). He is the Policy Director at https://demandprogress.org/team/daniel-schuman/ (Demand Progress), a grassroots, nonpartisan organization with over 1.5 million affiliated activists fighting for the rights and freedoms needed for a modern democracy. Daniel has spent many years studying our national legislature, working to reform it, and advocating to better fund it. He also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/ (https://firstbranchforecast.com/).
The subject of today’s episode is, “What does the House rules committee do?” My guest is https://bipartisanpolicy.org/person/donald-r-wolfensberger/ (Don Wolfensberger). He is a fellow at the Bipartisan Policy Center, and a https://www.wilsoncenter.org/person/donald-wolfensberger (scholar) at the Woodrow Wilson International Center. He served as a staff member in the U.S. House of Representatives for 28 years and was the director of the Rules Committee. Don is the author of two books: http://cup.columbia.edu/book/changing-cultures-in-congress/9780231190152 (Changing Cultures in Congress: From Fair Play to Power Plays), and https://www.wilsoncenter.org/book/congress-and-the-people-deliberative-democracy-trial (Congress and the People: Deliberative Democracy on Trial).
“How Congress tricks Americans” — that is the topic of this episode. My guest is https://www.nyls.edu/faculty/david-schoenbrod/ (Prof. David Schoenbrod) the author of the book, https://www.amazon.com/DC-Confidential-Inside-Tricks-Washington/dp/1594039119 (DC Confidential: Inside the Five Tricks of Washington). David is a Trustee Professor at New York Law School, where he teaches and studies environmental law, regulation, and other heady subjects. He also is a senior fellow at the https://www.niskanencenter.org/ (Niskanen Center).
“Is Congress Broken?” — that is the topic of this episode. My guest is https://www.cmc.edu/academic/faculty/profile/john-pitney-jr (Dr. Jack Pitney), the coeditor of the book, https://www.amazon.com/dp/B01N9VMONC/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1 (Is Congress Broken? The Virtues and Defects of Partisanship and Gridlock). Jack is the Roy P. Crocker Professor of Politics at Claremont McKenna College, where he teaches American politics and government. This book, which was coedited by William Connelley and Gary Schmitt, is a marvelous collection of essays written by top scholars. All of the chapters, I should note, are accessible to the lay reader. One need not be a political scientist or academic to enjoy this book, and come away with a greater understanding of the First Branch.
The topic of today's episode is, “How does the budget process work and not work?” My guest is https://www.concordcoalition.org/people/tori-gorman (Tori Gorman), the Policy Director for The Concord Coalition. It is a non-partisan, grassroots organization dedicated to educating the public about federal budget issues, and their consequences for the future. Tori spent 16 years on Capitol Hill where she held director level positions, advising senior members of the budget, appropriations, and tax writing committees in both the House and the Senate. Prior to her career in the federal legislative branch, she was the economist for the Maryland General Assembly.
The topic of today's episode is “What is the filibuster?” And does it have a future? My guest is https://www.brookings.edu/experts/molly-e-reynolds/ (Dr. Molly Reynolds), who is a Senior Fellow in Governance Studies at the Brookings Institution. She studies Congress, with a focus on how congressional rules and procedures affect domestic policy outcomes. She also supervises the maintenance of the “https://www.brookings.edu/multi-chapter-report/vital-statistics-on-congress/ (Vital Statistics on Congress),” Brookings’ long running resource on the first branch of government. Importantly, for our episode today, Molly is the author of the book https://www.brookings.edu/book/exceptions-to-the-rule/ (Exceptions to the Rule: the Politics of Filibuster Limitations in the US Senate).
The topic of today's episode is, “How Does the House of Representatives Organize Itself for a New Congress?” My guest is https://politics.catholic.edu/faculty-and-research/faculty-profiles/green-matthew/index.html (Dr. Matthew Green), an extraordinarily accomplished scholar of the U.S. Congress. He has been a professor of politics at Catholic University in Washington, D.C. since 2005, and he received his doctorate from Yale. Matt has authored or coauthored six books, the most recent of which is https://www.cambridge.org/core/books/legislative-hardball/37488C1E94117DFBFF924E5B67188E07 (Legislative Hardball). The first book-length examination of the tactics and effectiveness of the House Freedom Caucus. Matt is also a regular contributor to “https://www.mischiefsoffaction.com/ (Mischiefs of Factions),” a blog about political parties. And he has written about Congress elections and other topics in the Washington Post, Roll Call, and The Hill.
The topic of today's episode is “Reforming Congress for the 21st Century.” My guest is Representative https://kilmer.house.gov/ (Derek Kilmer), Congressman of the 6th district of Washington State. He was first elected to Congress in 2012. Before that, Mr. Kilmer served in his home State's legislature, worked for the Economic Development Board for Tacoma Pierce County, and was a consultant for McKinsey & Company. He received his bachelor's degree from Princeton University and earned a doctorate from the University of Oxford in England. Of particular relevance for our conversation today, Representative Kilmer has been the co-chair of the https://modernizecongress.house.gov/ (Select Committee on the Modernization of Congress) for the past two years. In autumn 2020, this committee released https://modernizecongress.house.gov/recommendations (97 recommendations) for updating the legislature, which you can see at modernizecongress.house.gov, and we'll hear more about those recommendations shortly.
The topic of today's episode is, "Do we need a Congress?" My guest is my friend and colleague, Dr. https://www.aei.org/profile/philip-wallach/ (Philip Wallach). He is a resident scholar here at AEI where he studies America's separation of powers system. And he focuses on regulatory power issues and the relationship between Congress and the administrative state. Before joining AEI, Phil was a senior fellow in governance studies at both the R Street Institute and the Brookings Institution. Phil also has served as a fellow with the House Select Committee on the Modernization of Congress. He is the author of the book https://www.brookings.edu/book/to-the-edge/ (To The Edge: Legality, Legitimacy, and the Response to the 2008 Financial Crisis). I have him on this episode because he wrote a terrific article for National Affairs titled "https://www.nationalaffairs.com/publications/detail/congress-indispensable (Congress Indispensable)."