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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 I was studying alcohol policy reform and she was deep in the process of helping rewrite some of Oklahoma’s outdated alcoholic beverage laws.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—there were 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. 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.
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 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. 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. 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:
Yes, 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 Spiro Agnew had resigned, and some saw President Richard 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, where it 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 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
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.
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