Eight Steps Towards A Less Dysfunctional Congress

by Kyle Mathews

If there’s one thing that most political commentators and Americans can agree upon, it’s that Congress is bad at its job. Presidential approval ratings go up and down, Congressional approval ratings pretty much stay down. These days, it’s become de rigueur to point to hyper-partisanship, legislative relics who’ve all but become permanent fixtures in both houses, the pervasive and harmful influence of special interests in the legislative and electoral process, and the regularity of ethical lapses and scandals.

The prevailing sentiment of the day seems to be “Congress is good, but the people in it are terrible,” and many of our attempts to address Congressional shortcomings stem from that mindset. Recent examples include campaign finance reform, lobbying disclosure requirements, hiring bans, transparency initiatives, and “the most ethical Congress in history.” These reforms aimed to keep bad people out of politics so good people could do good work.

This focus on bad actors; however, ignores the ways in which the system itself incentivizes bad actors. To run for Congress, stay in Congress, and pass legislation requires money, votes, influence, popularity, allies, and expert knowledge. Those requirements increase the value and leverage of organizations or individuals that can provide one or more of those to a significant degree, making those groups something of a super-constituent. These include donors, interest groups like the NRA or SEIU, think tanks like Brookings or Cato, fellow politicians, and the parties themselves.

Super-constituents distort representative government by creating incentives to value the priorities and contributions of a select few over those of a legislator’s constituents. Super-constituents also retain the power to punish elected officials more easily and more severely than regular constituents, by endorsing competitors, stripping legislators of seniority or committee membership, and cutting off access, particularly to donors. With this in mind, more significant reforms modifying the structure of the United States Congress or rather how it does business, not just who shows up to do it, need to be considered.

Broadly, we need reforms to accomplish more legislative/legislator independence, a better representation of people and collective interests, and a greater emphasis on work rather than optics and political gamesmanship.

More specifically, we would benefit from:

· More accurate representation of constituencies;
· Less partisanship;
· Incentives for legislative leadership;
· Breaking up entrenched power;
· Addressing the disproportionate influence of extra-legislative entrenched interests;

To accomplish some of those goals, or at least put us on the road to a less dysfunctional legislature, consider this slate of 8 reforms.

1.) Resolving the electoral status of D. C.

Any effort to make Congress more representative should start with ensuring that all citizens are represented. An American expat living in Paris has more congressional representation than an American living down the street from the Capitol and that’s not only a bizarre quirk of federal law, it’s also particularly un-American. Retrocession isn’t an option because – frankly – Maryland doesn’t want the district. The District of Columbia House Voting Rights Act of 2009 is undistinguished partisan deal making and blatantly unconstitutional.

The best solution is simply to apportion the residents of the district to Maryland and allow them to vote accordingly. It was introduced in 2004 as the District of Columbia Voting Rights Restoration Act, but used to be standard practice prior to the Organic Act of 1801. It’s constitutional, it’s fair, and it doesn’t involve some quid pro quo get congressional representation quick scheme. Apportioning the residents would also allow their representation in the House of Representatives to be population based, as it is with the states, and arguably should be. It’s also population based, which is kind of important in the house of Congress meant to be population based. Also, unlike the House Voting Rights Act, which gives 591,000 people only one seat in the House, this solution would give DC residents representation in the Senate, through Maryland.

2.) Discouraging Electoral Carpetbaggery

There’s an unsung principle at the heart of American democracy, the idea that those who make the laws should follow them; and conversely, those who are beholden to laws should have some say in creating or modifying them. It follows from that principle that people with no discernible stake in laws should have less of a say. As such, we ought to limit – to the best of our ability – what I call electoral carpetbaggery, the influence of outside persons and organizations in local elections.

States should establish content neutral laws that require funds spent on campaign broadcasts (radio and television ads) be raised by eligible voters or residents of the voting district, including corporate residents. The aim is to accomplish two effects, curtailing the unabated influence of monied interests and reducing the expenditure amounts required to run for public office. Moreover, candidates would be more dependent on local fundraising as opposed to national organizations and advocacy groups.

For example, in a gubernatorial or Senate race, only residents and businesses with locations in the state could contribute funds used to broadcast campaign materials. In a Congressional district, only personal and corporate residents of that district could contribute, but not residents of a neighboring district, even if they’re in the same state. Given the history of broadcasting regulation and its disparate effect on campaigning, it stands alone as a regulatory target. We also already itemize contributions from within the district. Print materials, canvassing, campaign travels, new media campaigning, and rallies would remain unaffected.

3.) A mechanism for automatic cloture in the Senate

The flaws of the filibuster are well known, but eliminating it outright seems certain to fall victim to the Law of Unintended Consequences. Moreover, it would effectively end any and all checks and balances on majority power in the Congress. To break the power of the filibuster without giving dual-branch majorities carte blanche, including the power to ram through war authorizations and such, the Senate should establish a new rule to limit consideration by allowing a majority vote to establish a maximum amount of time for debate of a bill above a standard minimum that can only be overridden by a 3/5 vote or amended upwards by another majority vote. This would allow the Senate to retain its prerogative for lengthy consideration and debate but allow the chamber to set some limits to get work done rather than the current options of none or cloture, which are dysfunctional to say the least. I envision the standard minimum as somewhere in the ballpark of 10-16 weeks, not including recesses for vacation.

4.) Eliminating anonymous holds

The Senate’s rules and quirks may be annoying but the anonymous holds are a blatant and opaque abuse of power. Good governance doesn’t stem from a vacuum of consequences. Constituents should know if their Senator is holding up legislation they want or an administration appointment, to better assess their job performance. The anonymity of holds is eroding but it should be eliminated outright, if not the hold system entirely.

5.) Increasing the size of both houses

Despite our general disdain for politicians we need more of them. Congress is too small.

In the House, the average size of Congressional districts is over 700,000, which vary from Montana’s at-large district with just over 960,000 people to Wyoming’s at-large district with just over 530,000 or either of Rhode Island’s half million large districts. Such large sized districts require money to campaign in them and a city sized number of votes to win, which places a premium on the organizations that can provide one, the other or both.

The relatively unobtrusive Wyoming Rule would increase the house to 592 members. If we were to reduce the average size to 500,000 per member, the house would be 616 members; both numbers – I’d like to point out – are well under the size of the House of Commons, which represents a population of just over 60 million with 646 members. The question of how much larger we ought to make the House is an open one, but we can’t reasonably expect members to effectively represent 700,000 people in a population this heterogeneous.

The Senate has to maintain equal suffrage and the constitutional article that says so isn’t easily amendable, if at all. However, we could increase the Senate to 150 members, allowing each state to elect a Senator every two years. This would have the effect of making the Senate more representative with more members. It would also make the Senate less of a lagging indicator when electoral shifts occur in the country.

The final effect of increasing the size of Congress is to make it more likely that the winner of the popular vote in Presidential contests will also win the Electoral College, which is overdue in presidential politics.

6.) Increasing the capacity and role of the Congressional Research Service

Yes, the CRS is large, expensive, and operates outside of the public purview. However, it is also an independent think tank that, like the CBO produces well-respected work to aid Congress in the work of legislating. Beyond the fancy lunches and campaign contributions associated with lobbying, information can be just as valuable a commodity for Congress and indeed the executive branch as well.

Some lobbyists are shameless power brokers but others are knowledgeable advocates whose assistance to legislators and role in crafting legislation is invaluable, which is why Congress needs to have more expertise on hand to provide an alternative source of reliable research. The CRS should also be required to publish issue briefs geared for public consumption on topics addressed by legislation given a CBO score.

Certainly this wouldn’t replace the role of advocacy groups and think tanks by any measure but it would enable Representatives and Senators to be less dependent on the expertise provided by extra-Congressional institutions. It would also provide the public with an apolitical avenue towards understanding the issues at hand while simultaneously giving less cover and credence to popularly repeated rumors, innuendo, and falsehoods.

7.) Restructuring the committee system

The real work of Congress is hashed out in committee. Committee assignments and sizes are determined by the parties, which gives party leaders more leverage to penalize members who don’t hold the party line making such actions less likely, even when in individual cases such actions might better reflect constituents and the country. The system prizes institutional seniority over ability, which in turn benefits constituencies that keep sending the same person to Congress over new constituencies and those electing new representatives.

Reducing the incentive for legislators to stick around and amass power as well as reducing the leverage parties wield over their members could be accomplished by reforming the committee system. The size of committees should be unrestricted and the leadership of each committee voted on by the full membership of the committee. However, limits restricting the number of committees on which members can sit should remain in place.

Members couldn’t stretch themselves too thinly by working on too many committees, but committee size would better reflect members’ interests. Self-directed leadership of committees would reflect ready-made legislative coalitions and create incentives for coalition building along bipartisan or issue focused lines, rather than discouraging the same. Incidentally this would make Congressional committees parliamentary in their governance. Chairs with initiative would reflect legislative coalitions rather than seniority in the party with most number of people, if Senator Baucus is any indication, these aren’t the same thing. Not only would chairs be more powerful (at the expense of party leaders) and better able to deliver on legislation but it would force opponents to develop alternative coalitions rather than riding a wave of dissatisfaction into the majority and eventually positions of Congressional leadership.

8.) Non-partisan elections

Finally, I think we should work to make Congressional races non-partisan elections. Nebraska’s legislature is uniquely non-partisan and its continued ability to function without explicit labels is certainly encouraging. My point, however, has less to do with the labeling than the structure of the elections themselves. In a partisan primary, candidates duke it out within their parties, open primaries and general election run offs excepted, and then most Americans are confronted with a choice between one Republican and one Democrat.

Thrilling.

Between the reductionist nature of our politics and gerrymandered districts that look designed by M.C. Escher, our system of government routinely leaves citizens out in the unrepresented cold.

With non-partisan elections; however, the top two vote getters in a primary move on to the general, opening the door for electoral choices more in-line with the district. Take for example a heavy Republican district, where a tough primary between a moderate Republican and a Conservative Republican ends in a relatively small victory for the Conservative (52.5%). The district’s 20% liberal democrats all vote for a liberal Democrat who hasn’t a snowball’s chance in hell of winning. The Conservative Republican goes on to win the general election despite only being the preferred choice of say 42% of the district.

The moderate Republicans split their differences with their new Representative and the Democrats get nada.

In a non-partisan election, the Democrat gets creamed early on, but the Democrats in the district get to choose between their district’s versions of James Inhofe and Olympia Snowe. This system would result in one more person who’s at least willing to negotiate and compromise on liberal issues and one less hyper-partisan conservative, who’s solid base of 42% means they can ignore or work counter to the interests of the remaining 58% of their district.

The creation of solid Democratic seats and solid Republican seats creates political monopolies that despite elections every few years attract many of the same problems and social costs associated with monopolistic behavior in an economic sense. Non-partisan elections would challenge these monopolies and make them more competitive, more responsive to citizens, and more in-line with constituent preferences.

A major focus of the last two reforms is challenging the power of the parties. Not to over-estimate the problem of partisanship but California’s cautionary tale, one of paralysis by partisanship, super-majority requirements, and term limits, makes an effective Ghost of Christmas National Partisan Gridlock Future. The political parties aren’t all bad, but increasingly they are distractions from actual governing and tackling the issues they’ve formed to address. Just look at the parties, today. The GOP is the New Coke of politics. And the Democrats…well let me ask: how many Democrats does it take to change a light bulb? 60 Senators, 256 Congressmen, a President, and Olympia Snowe to lend them a ladder.

Maybe it’s not their fault, the parties can’t help but see everything in terms of score-keeping – after all politics is something of a game. However, it’s about time we treated Congress less like a field of competition and more like a workplace. That doesn’t require “taking on the big special interests,” as much as taking on the incentive structure that makes special interests valuable.

While no doubt incomplete, the reforms outlined above are a start, making it harder for individuals to engage in power plays for their own interests and making the system better suited for functional working without sacrificing checks and balances along the way.