Understanding Congress

This topic of this special episode of the Understanding Congress podcast is a recent book by a former Hill staffer. It is titled Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi (Lexington Books, 2023)

The author is Bradley F. Podliska is an Assistant Professor of Military and Security Studies at the U.S. Air Force Air Command and Staff College in Montgomery, Alabama.

Brad is a retired U.S. Air Force Reserve intelligence officer with the rank of lieutenant colonel. He was deployed to Iraq in 2008 and also worked as an intelligence analyst for the Department of Defense.

Dr. Podliska is a former investigator for the U.S. House of Representatives Select Committee on Benghazi. He is the author of two books, and that latter experience working on the Hill formed the basis for his book, Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Professor Podliska, welcome to the podcast.

Bradley Podliska:

Thank you, Kevin, for having me. I appreciate being here.

Kevin Kosar:

You were an investigator for the House of Representatives. I introduced you as a professor, but you had on-the-ground experience inside Congress as an investigator for the House of Representatives. For audience members who have never heard of that position, what do House investigators do? And how did you get to that position?

Bradley Podliska:

Investigators are another term for subject matter experts, usually based on their executive branch experience. The role of an investigator is to interview witnesses, request documents, analyze those documents and then provide new information back to the members for the committee so they can conduct their investigation. Now with that said, the titles when it comes to the Benghazi Committee were completely and totally arbitrary. Attorneys had “counsel” in their title and if you were a non-attorney, you either had the title of investigator, professional staff member, or advisor, but we all did the same work. So we were all analyzing documents, we were all interviewing witnesses, and then we were reporting the results to the committee members.

In my particular case, I spent 17 years in the intelligence community and the Defense Department, and I knew someone that had known the Republican staff director of the Benghazi committee for over two decades. So I submitted a resume and I was hired soon thereafter, and this is a point I actually make in my book Fire Alarm, which is that you're basically hired on perceived party loyalty. I refer to this as a non-compensatory dimension. In other words, merit is a secondary condition. You might be the best person for a job, but if you are not perceived as a partisan, you are not going to be hired in the first place. This is done is through those personal connections that I talked about. I am not aware of any staff member that was hired on the Benghazi committee that either did not have prior Capitol Hill experience or did not know somebody on the committee itself.

Kevin Kosar:

And that should—for listeners who have heard some of the other podcasts I have done on the Congressional Research Service, Congressional Budget Office, Government Accountability Office—that is a very different thing from what happens at those legislative branch support agencies. Over there, it is a nonpartisan hiring process, based on merit, and once they are hired, they are tenured for life once they get through their one-year trial period to make sure that they are a right fit for the job. It is a very sharp contrast.

This committee that employed you—we will call it the Benghazi Committee, since the title is rather long—was not the same thing as the typical standing committees, the ones that have lasted forever (e.g., the Agricultural Committee or the Armed Services Committee). Where did this thing come from? How was it created and how was it different from the usual Congressional Committee?

Bradley Podliska:

That is certainly correct. This was a Select Committee and it was established through a resolution for the purpose of investigating a particular issue. The resolution is going to detail the power and authority that a Select Committee has, and—unlike a Standing Committee—it is not limited to a particular subject area.

Now when it comes to the Benghazi attack, the government had actually conducted 11 prior investigations prior to the setup of the Benghazi Select Committee. The FBI had conducted an investigation. The State Department and County Review Board had conducted an investigation. There were five House committees and four Senate committees that had conducted investigations.

The Benghazi Select Committee in particular was forced into being by an outside group referred to as Judicial Watch. On April 29, 2014, they obtained an email from Obama advisor Ben Rhodes via a FOIA request. And in that email, Rhodes is going to tell Ambassador Susan Rice that she should emphasize that the attacks were, “rooted in an internet video and not a broader failure of policy.” This email forced then-Speaker Boehner—who at the time did not want to set up a Select Committee—to hold a vote on May 8, 2014 to establish the Select Committee on Benghazi. It's going to be given a mandate: nine investigatory tasks that it's going to look to when it comes to the 2012 Benghazi attacks, which boil down to why did the attack happen, how the Obama administration respond to the attack, and did the Obama administration stonewall Congress in its prior investigations.

Kevin Kosar:

What did this special committee look like? Was it a lot of staff working for it? Was it a sprawling operation or was this a tight-knit group of people?

Bradley Podliska:

It was a small staff—24 staff members in total: two press secretaries, two executive assistants, security manager, and the interns. Arguably, there was a 25th member, who was actually a reporter. The committee would link information to this reporter and she would publish the results of this. So, you know, de facto 25. However, of this 25, there was only 15 staff members who could be identified as actually being actively involved in the investigative work of the committee. This included the staff director, the deputy staff director, the chief counsel, and 12 investigators, counselors, and advisors.

Kevin Kosar:

I think it is easy for people—when they hear committees—to think about what they see on TV, which is a bunch of legislators sitting at a dais with maybe a staffer or two lurking in the back, and a clerk tapping out notes of what is going on. But that is not all the people power involved.

How often were legislators working with the staff, poring through documents? What percentage of that time were they there doing that hard work?

Bradley Podliska:

In general, very, very little. Now this did vary from member to member. I actually looked at this in Fire Alarm, so I can say that Representatives Jim Jordan, Lynn Westmoreland and Trey Gowdy were actively involved in investigation. They were attending those witness interviews, and getting briefed on a regular basis. But then we have Rep. Peter Roskam on the opposite side. He only attended four high profile interviews in total. I think I saw him for a total of maybe one staff meeting, so simply not involved.

The day-to-day activities of the committee are actually done by the staff. You are going to tee up that information for the committee members and it is up to them on what they are going to do with it. We can get into details on Rep. Roskam’s Clinton hearing, what it looked like in terms of not being prepared. But generally speaking, it varied greatly between the members.

Kevin Kosar:

It is a good reminder of the old quip by Woodrow Wilson, 120 some years ago, that Congress at work is Congress in committee—staff in Committee; that is Congress at work.

Early in your book, you ask—and this is a driving question for Fire Alarm—how did a committee devoted to researching a terrorist attack on a US compound in Libya turned into a conflictual partisan operation. How did that happen?

Bradley Podliska:

My central claim in Fire Alarm is that both Republicans and Democrats actually use these taxpayer-funded congressional investigations as an arena to mount political attacks for electoral advantage. This actually stems from institutional changes under Speaker Newt Gingrich in 1995. He made committee chair selection subject to a secret party vote and subjected committee chairs term limits, replacing the seniority factor that had been in prior. He set task forces that allow an alternative legislative path to committees. He cut the committee staffs by a third, effectively limiting the expertise available. He also removed the minority party from deliberations.

In terms of the Benghazi committee itself, as I said, Speaker Boehner did not want to set up the committee. His hand was forced by the conservatives, and so when the hiring process was initially completed, it was going to do a check the box investigation. That is up until March 2, 2015, when The New York Times published an article that then-Secretary of State Hillary Clinton used private email. After that, and up to her hearing on October 22, 2015, the investigation is going to kick into high gear going after Hillary Clinton to the exclusion of investigating the White House, intelligence community, or Defense Department.

One example of that is the committee issued 26 press releases about Clinton, three about the State Department, but absolutely none about the White House, Defense Department, or our intelligence community. The committee is going to direct 15 of its 27 document requests towards the State Department, including five for Clinton herself.

Here are a few other examples. The committee is going to produce 74,306 pages of documents; 72,343 of those pages came from the State Department. It interviewed 107 witnesses; only three of those were from the White House. It conducted 24 Defense Department interviews; 19 of those interviews are going to occur in the last four months of the actual investigation itself.

Kevin Kosar:

Not only was Hillary Clinton the Secretary of State, but she considered as the leading candidate for the Democratic Party’s nomination for president in 2016. And what happened in Benghazi became a vehicle of embarrassment and referendum on her confidence. Her use of private email was also remarkable and problematic because a) you are not supposed to do that and b) there are classified information policies that the executive branch and as the leader of an executive agency you are responsible for ensuring that those are obeyed.

What other background factors that should listeners know about?

Bradley Podliska:

Certainly, that is going to change completely the course of the investigation because this now becomes about Clinton's emails. Did she cause a problem and bring the attention onto herself? Arguably, yes. And, as it turned out, she had the private server set up in her basement of her house which added fuel to the fire.

With that said, the investigation goes into high gear and goes after her. Nobody is taking responsibility and now it appears that Clinton is hiding things. This is going to add, as I said, fuel to the fire.

Kevin Kosar:

You noted that, when Newt Gingrich was the Speaker in the 1990s, there were alterations made to the way the House operated. This was the first time that the Republicans had gained control of the House in four decades, and they were putting things under new management: changing how the House works and they were making it a little more parliamentary in nature. It was much more kind of becoming a team sport exercise. When you are the majority, you stick it to the minority. You vote with the team. Do not cross the aisle unless you absolutely have to. And so you describe these kind of forces that have been building up over the years.

But was it inevitable? The Benghazi hearings that were just so polarizing and got so ugly, it did not have to end up that way, did it?

Bradley Podliska:

No, absolutely not. And so, going back to my earlier claim, you are hiring party loyalists to conduct this investigation, and these are not necessarily going to be the subject matter experts. They are getting their direction from Speaker Boehner's office on how to conduct this investigation. And so, one of the points I make in Fire Alarm is it is evident to me that nobody actually read the witness interview transcripts after they were completed. They put together this report kind of anecdotally, and in doing so they missed key factors that actually were more incriminating on Clinton than they actually found.

Kevin Kosar:

So in the rush to bloody up a member of the opposite party and the person who would become the next candidate to run for the presidency, essentially the truth got lost along the way.

Bradley Podliska:

Absolutely. In my book, I talk about a key interagency meeting at 7:30 PM on the night of the attacks. Clinton—as the senior official—is going to lead this meeting, and this groupthink mentality takes place that Ambassador Stevens has been taken hostage. This is going to lead the military to making a whole bunch of other mistakes and delay in their response for Ambassador Stevens.

Instead of looking for all information that was available to her, including contradictory information, Secretary Clinton read a note at the meeting, saying Ambassador Stevens has been taken hostage. Now, we know this is completely and totally untrue. This was a very well planned, well-organized terrorist assault, which later goes on to the CIA annex. But the military is going to follow her lead and basically execute a plan for hostage rescue and assume they had more time than they did, and the CIA annex does not even come into their equation when it comes to the rescue. Also at this meeting, a narrative is going to take hold—also based on absolutely no evidence—that this attack was due to an anti-Islamic video. Jake Sullivan is going to write talking points from this meeting that are going to show up on the Sunday talk shows five days later where Susan Rice is going to make the infamous comments that this all being due to a video that had gone awry.

Kevin Kosar:

It is a popular amongst voters to imagine that there are great and complex conspiracies that are being carried out by nefarious people in high places and that they are very intricate and coordinated, and they can last for decades. That is not what happened here.

What we end up with is clusters of people playing a rough partisan game, crafting narratives on the fly to some degree to suit their priors and purposes, adjusting them along the way, sometimes just making up stuff outright. All the while, the media is running around and having some sort of interplay with it. It is a messy scene.

Bradley Podliska:

That is exactly right. You cannot have a conspiracy when incompetence is the answer. Officials are doing their best, but not entirely. Other officials such as Ben Rhodes and Jake Sullivan are getting involved and putting a partisan spin on this. And the Republican investigation is all in on Clinton but not looking at the White House, Defense Department, or intelligence community.

We just have incompetence built on top of incompetence. There is no conspiracy theory to be had here. It simply comes down to people failed and people failed to take responsibility.

Kevin Kosar:

This is why books like yours are so important, because there was so much noise being made around this whole phenomenon of what occurred in Benghazi. It was a blur of confusion to anybody trying to follow it from the outside. So much information coming out and so much stuff you did not know if it was true or not true. For somebody to go back, write a history, put everything together, and try to explain how it played out, where the facts were, and where the fantasy was is a huge service. We can all learn something instead of being caught in the myths that were spun at the time.

You ended up leaving the committee before the whole hullabaloo was done. Why? What happened?

Bradley Podliska:

This is actually quite interesting. I talked about Newt Gingrich and how he had fundamentally changed Congress in 1995. He is actually going to pass the Congressional Accountability Act. And included in that is employment law—what is referred to as USERRA—meant to protect reservists that go on military service. So right as The New York Times story is breaking, literally that day, I notified the committee I had to go on military leave on two periods, once in March and then again in May.

I came back and staff leadership is not talking to me, they were not giving me an investigative work. It turned out they were very upset that I had gone on leave and that I had not shifted to this hyper-focus on Clinton when I returned. About a month later, they called me in the office, they told me to resign or be fired. I, in turn, filed a USERRA complaint. The whole thing blew up in the media.

When it...

The topic of this episode is “Why is Congress struggling to manage the nation’s finances?”

My guest is Representative David Schweikert of Arizona. He was first elected to Congress in 2011. Prior to that, he was a businessman, served in Arizona’s state legislature, and as Maricopa County Treasurer.

He is a Republican and holds a seat on the Ways and Means Committee, which writes tax policy. David also is the Vice Chairman of the bicameral Joint Economic Committee (JEC) and co-chairs both the Blockchain and Telehealth caucuses. He is passionate about economics and finance, which makes him an excellent person to ask, “Why is Congress struggling to manage the nation’s finances?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Dave, welcome to the podcast.

David Schweikert:

Kevin, thank you for having me.

Kevin Kosar:

What is the state of the federal budget? Do we even have one in 2024?

David Schweikert:

That is sort of the magic question. You have one, but it is not the one you want. In many ways, we are operating on the spending authorization from previous years, which has been renewed over and over. In other words, we are funding things that were supposed to have expired and not funding things that we are supposed to be getting ready to do.

It is the absurdity of a dysfunctional Congress. Priorities that go back to when Nancy Pelosi was speaker are still being funded today.

Kevin Kosar:

Why is that?

David Schweikert:

I actually have an overarching theory, and then we can get into the nitty-gritty of some of the chaos. There is a general lack of understanding of the level of financial stress that the US Congress and the entire country are under.

We play this bookkeeping game in the United States of, here is publicly borrowed money, and here is the money we are borrowing internally. On Friday (February 23, 2024), I believe we hit an all-time record of borrowing about $92,000 a second. Now you hit this sort of constant stress where every dime a member of Congress votes on now is on borrowed money: all defense and all non-defense discretionary.

If my math is correct, we are going to borrow almost a trillion dollars of Medicare into mandatory this year. So now, you come back and you get a member who is all excited, saying he is going to cut spending on HHS (Department of Health and Human Services), some other agency, or some part of discretionary, and he is going to save $500 million.

That is a lot of money. But when you are borrowing about $7.5 billion a day, many of the fights we are having are over a few hours’—if not just a couple days’—worth of borrowing. It is a way we can look like we are doing something because we are terrified of getting in front of a camera and telling the American public that 100% of borrowing for the next 30 years will be interest, healthcare costs, almost all Medicare, and backfilling the Social Security Trust Fund—if we decide to backfill it.

Kevin Kosar:

Those are astounding numbers. I think it was on Friday you tweeted out some numbers on the national debt, including a figure of how much we are racking up per second. If memory serves, our national debt is north of $30 trillion. Is that right?

David Schweikert:

We are currently at around $34.3 trillion right now. You are going to hear apologists go out and say, “We're only $27 trillion publicly borrowed.” The absurdity of that is you still have to pay back the several trillion dollars you have borrowed from Social Security, the Medicare trust funds, the Highway Trust Fund, railroad retirement trust, etc. And you will have to pay back with interest. And because you do not actually have enough tax receipts, you are going to borrow the money to pay back the very money you have borrowed.

Kevin Kosar:

That’s not good. I would be quite concerned if I had an uncle or somebody who was borrowing money to pay money that he had borrowed.

David Schweikert:

And I only bring it up because this is my moment to tell those out there in the intelligentsia in Washington, DC who were mocking me and my JEC economists about four or five months ago when we were saying interest will be a $1 trillion—over $1 trillion gross—in the 2024 fiscal year. Well, a couple of weeks ago, Treasury confirmed that.

That makes interest the second biggest expenditure after Social Security in your federal government—more than Medicare, more than defense.

Kevin Kosar:

I recall a book from some years ago by Eugene Steuerle, who has written on and thought about budget matters for a very long time. He spoke of the deficits and debt and the crowding effect it can have, and he called it “a loss of fiscal democracy”, because you just do not have as many choices now because you are locked in so many things.

David Schweikert:

And in a weird way, it goes back to your previous question. Why don't you have a rational budget? Why don't you have rational appropriations? Why can't you do rational policy? How do you do those things when you now have to go home and explain to your voters that waste and fraud is huge, but still small compared to what we are borrowing? All foreign aid might be five, seven days of borrowing. Or on the left, taxing rich people more.

There is a great paper out of the Manhattan Institute from about three, four months ago that talks about if you did tax maximization on everyone earning at least $400,000—maximized every tax: estate tax, income tax, etc. to the point where you got peak tax receipts before you started to lose receipts—and adjusted it for its economic effects, you might get 1.5 or 2% of the entire economy. And for many of us on the right who want to cut things, we can only come up with 1 to 2% of cuts in government GDP. That is a lot of money, but—and I am doing this math off the top of my head—I think we have borrowed about 9.6% of the entire economy so far this fiscal year, in a year when the economy is actually pretty good.

So the left's idea only gets you 1.5 to 2% of GDP, and the right’s idea gets you another 1 to 2%, but in a time of good economy, you are borrowing 9.6% of GDP. Do you see a math problem?

Kevin Kosar:

Yeah, I recall that paper you referenced by Brian Riedl at Manhattan Institute. He is a fearless truth teller, knows his stuff, and unlike you or other legislators, he does not have to face voters so he can give the unpleasant facts of the matter. 

Some time back, I spoke with a budget expert who reminded me that it was the habit of the US government since the Founding to try to have a roughly balanced budget over the long run. You hit rough times, a war, or other problems that cause you to run deficits, but then you turn around and make some adjustments and get yourself back to where you are supposed to be. That was Paul Winfree, who used to be at Heritage and now has his own organization.

That seems to have been lost. Everybody seems to want to talk about running structural deficits as a problem—unless you are a modern monetary theorist—but there does not seem to be much willingness to act.

David Schweikert:

Not to be disharmonious, but I think it has actually gotten in some ways simpler than that problem. The old history is when you need a stimulus, borrow some. When times are good, pay off your sins.

Again, 100% of the debt from today for the next 30 years is interest—another way to say it is demographics. We hate to talk about this because it gets you unelected, but it is truthful—we got old. There was an update in fertility numbers on Friday, which were terrifying. I think we were down to 1.63 in last year's fertility rates. So now we have fertility that is equal to Western Europe and lower than France and a number of other countries. My math is that in about 15 or 16 years, the United States will have more deaths than births.

We have to deal with the reality that we have a population that has earned benefits—our baby boomers have earned their Medicare and Social Security—but we do not have the population growth or the economic vitality to have the tax receipts to take care of that.

So you will have to be willing to do some things that change health care costs. Most of the political class wants to play these games of “Medicare for All” or this or that, but none of those actually reduce costs. What they do is they shift who pays—it is subsidized here and paid over here instead of adoption of technology, adoption of aggressive math.

For example, if diabetes—particularly Type II—accounts for 33% of all healthcare spending, 31% of all Medicare, wouldn’t it make more sense to have a brutally honest conversation to prevent diabetes, maybe by tackling obesity in America? And it turns out mathematically, that is one of the first things in the stack you could do that is moral. It's great for society. It's great for family formation. It's great for being able to come back into the workforce.

It's also moral. We actually have some math that shows that one of the most powerful things you could do to close income inequality for urban poor, rural poor, my tribal poor here in Arizona, would be to take on things that are preventable in health. Five percent of the population accounts for over 50% of healthcare expenditures. Help your brothers and sisters with those chronic diseases, and the most common is obesity. And it is fascinating the attacks I will now receive for what I just told you, even though every bit of that is ethically and mathematically absolutely truthful.

Kevin Kosar:

Yeah, I recall seeing some of the things you put out about Ozempic, and the idea that we could have these medications that could just do miraculous things to improve health in that area.

David Schweikert:

And I want to be careful about that. It is obviously bigger—should you actually have a brutally honest look at agriculture policy? Should you have a brutally honest conversation on what to do with nutrition support in the United States? When you look at mortality statistics and the health outcomes of the population—particularly the poor—and then you actually take a look at what causes those health outcomes, it is frustrating because the political class often wants to say, “We'll just cut spending here.” But when you lay out in front of them what your options are to cut, they like the rhetoric but they do not actually like the facts of what would have to happen.

Kevin Kosar:

And as you alluded to earlier, the magnitude of what they are pointing at is not going to make much of a difference because those are not where the real drivers of the deficit and debt are—they are in these other categories. What are we up to on the entitlements plus debt payments? Is that 65-plus percent—

David Schweikert:

Oh, no, much higher. If you are borrowing close to 30% of your government, and—it is actually probably even more this year. It should not be because you have a year where tax collections have grown four-plus percent. Yet, we actually have had months where our spending is triple that.

There are always complications. We had certain deferred healthcare treatments, we had this huge spike in Medicare, and we are trying to figure out what normalization is. But if we come in this year—when tax receipts are up fairly healthily—borrowing $2.5, maybe $3 trillion, imagine what would happen if we went into an economic slowdown. Imagine if we get into a hot war. Imagine if there is another pandemic. We have made ourselves very economically fragile from the federal borrowing debt standpoint. Congress is no longer in charge. The Administration no longer is in charge. We have made the decision to put the bond market in charge of your government.

Kevin Kosar:

It is clear that it is probably tougher than maybe ever for a legislator to tell voters the truth about how the federal finances work and the real work that goes into cutting deficits. It's not going to be pretty. It's going to be hard—

David Schweikert:

It will be hard. There is hope, but that window is closing on us very fast. We have done some experiments on things you could do in health, the adoption of AI, adoption of technology, shutting down programs that do not really do anything anymore, etc. And for them to have the real fiscal effects before you have hit such a level of borrowing that the financing cost just sort of takes over everything, you may only have four or five years to make some of these decisions. Maybe even less. On some of the health stuff, you need to do them in the next 36 months.

Kevin Kosar:

Is there anything that can be done in terms of the 1974 budget acts that would make it better, easier, or less agonizing and difficult for Congress to collectively kind of make these decisions? Or is it just we just need better people who can step up, tell the truth, and make hard votes?

David Schweikert:

I actually believe in the 1974 Budget Reconciliation Act. There are a number of tools there that could be used, but you also need a structural change in the committee structure. This one is uncomfortable to talk about, but you have a lot of committees that deal with the same policy area. For example, health is in like four committees. And that makes it very complicated and difficult to try to fix things, such as providing certain incentives in Medicare to keep people healthy, add competition, legalize the use of technology, etc. We have to redesign the areas of authority of the individual committees and do a better job of tying the policy side to the appropriation side, because we have this disconnect now where we appropriate, but it is almost impossible to move policies that are disruptive.

For example, we took great joy and pride in the price transparency bill. But our own scorers and outside academics say that it may possibly bend healthcare costs by 0.5% over a decade. Yet you have in many markets a double-digit price growth on healthcare. So we pat ourselves on the back for accomplishing these tiny rounding errors because they sound great in speeches and mail pieces. But the scale of movement against us financially is overwhelming and we are terrified to tell the truth about it. So your only choice may be to put together a debt deficit commission, give it remarkable authority, give it an up or down vote in a lame-duck session, and just accept that the people who lead it are destroying their potential political careers to save the country.

Kevin Kosar:

It sounds...

The topic of this episode is, “What is legislative effectiveness?”

We voters often say that we want our senators and members of Congress to do things, and preferably, the right things. We tend to dislike it when we see people on Capitol Hill who are all talk and no action. And in theory, we should vote out of office those lawmakers who are ineffective.

Let me have a caveat here. To be sure, there are some legislators who have turned noise making into a profitable brand, and they do use it to get reelected again and again. But in my 20 years of watching Capitol Hill, it's my estimate that they comprise a small percentage of the total membership. Most people in Congress are, to varying degrees, trying to get things done. So how, then, are we voters supposed to tell which of these legislators are effective and which are not?

To help me answer that question, I have with me Craig Volden. He is a professor of Public Policy and Politics at the University of Virginia. Dr. Volden is the author of many publications. Critically for this podcast's purpose, he is the founder and co-director of the Center for Effective Lawmaking, which produces scores of legislator effectiveness that you can find at: thelawmakers.org.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the program.

Craig Volden:

Thanks so much for having me. It is a delight to join you, Kevin.

Kevin Kosar:

So let's cut straight to the topic of the program. What is legislative effectiveness?

Craig Volden:

This is something that I have been thinking about for a long time working with Professor Alan Wiseman at Vanderbilt University. We wrote a book on the subject about a decade ago called Legislative Effectiveness in the United States Congress: The Lawmakers.

In that book, we defined legislative effectiveness as, “the proven ability to advance a member's agenda items through the legislative process and into law.” So the key elements of “legislative effectiveness”—proven ability, the agenda items of the member, advancing into law—are in there.

Kevin Kosar:

So as the title of the book indicates, it really does focus on the lawmaking function of an elected official.

Craig Volden:

That's right.

And here, Alan and I founded the Center for Effective Lawmaking. And we like to stay in our lane—it is not the “Center for Effective Oversight” or “Center for Effective Communication with Constituents.” The Center is about lawmaking: what it takes to move those bills into law in the Congress and increasingly now in the state legislatures.

Kevin Kosar:

So you mentioned there was a book about a decade ago. In my intro of you, I mentioned the website, thelawmakers.org.

When did that launch, and what was the motivation behind putting that out there?

Craig Volden:

Our book came out in 2014, and there was certainly some academic interest. But there was also some broader level of interest among members of Congress, in the good governance community, and some private foundations. We were blessed enough to get some grant money and to have a conversation about whether we wanted to continue our research on effective lawmaking into the future and, if so, did we want it to be a purely academic exercise or were we interested in maybe more engagement with Congress and with the good governance community? We are both at career stages after tenure where we can combine those—do research and hopefully make that research of use to others.

As part of that, we looked into what would be the best way to make that contribution, and decided that setting up the Center for Effective Lawmaking—a partnership between Vanderbilt University and the Frank Batten School of Leadership and Public Policy at the University of Virginia—made a lot of sense. We have, for example, two dozen faculty affiliates at a variety of colleges, universities, and think tanks, an annual conference, a working paper series, public release of our scores on thelawmakers.org, a small grant competition, etc.—all of the things on the research end that are really helpful to building up a community of knowledge.

On the engagement front, we—along with our good governance partner organizations—generate a new member guide and get involved in orientation materials for new members coming to Capitol Hill. We speak with a variety of organizations that are trying to get people to run for Congress who would be effective once they get there or institutional reformers who are thinking about how to how to make a better Congress.

We aim to be grounded in the research, but simultaneously be of use to the good governance community and to Congress itself.

Kevin Kosar:

Yes. A book is a static creation that cannot be updated unless you release a new edition—you cannot insert new data; you cannot put information on new members of Congress. So a website has got clear attraction to it. Everyone should know also that the website is not behind a paywall—anybody can go take a look at thelawmakers.org.

Now put in terms for non-political scientists out there, how do you measure legislative effectiveness? Do you just count the number of laws that a member's name is attached to as a sponsor or cosponsor? What is the method?

Craig Volden:

We returned to that definition—“proven ability to advance a member's agenda through the legislative process and into law”—to think clearly about how we would objectively measure that.

Prior to our work, there was just the counting up of laws. There was some subjective, “Let's do a survey and see who people think is effective.” We were more interested in a holistic measure, so we actually combine 15 metrics in a weighted average based on the number of bills that any member sponsors, how far they move through the lawmaking process, and how important they are in a substantive sense.

We track five stages of the lawmaking process. For each member of Congress, how many bills did he or she put forward as the main sponsor? But then, how many of those bills received action in committee—a hearing, a markup, a subcommittee vote? How many of them received action beyond committee on the floor of the House or the floor of the Senate—getting to a vote? How many of them passed their home chamber, and how many of them became law?

Since we know that not all of these bills are the same, we downgrade the commemorative bills (e.g., post office naming, minting of coins) and we upgrade the substantive and significant bills—those that get a lot of media attention. These five stages of the lawmaking process and three levels of bill significance combined to 15 weighted average metrics. The things that are rarer—having a law, having a substantive and significant law—then have a much greater weight on one's legislative effectiveness.

We are also recognizing that we are increasingly moving from passing stand-alone bills to conglomerations of bills and ideas into law. The omnibus budget bills or the National Defense Authorization Act (the NDAA) often has embedded within it dozens or hundreds of different pieces of legislation. We are now able to now detect that and give credit for it by using plagiarism style software to find the language that is in bills and see whether it appears in laws later on.

The data available to us is great such that on our website, we are able to give scores for every member of Congress in each Congress from the 1970s right up through the most recently completed 117th Congress and in 21 different issue areas as well. So somebody wondering, ‘Who's really getting something done on defense or in education or in health care?’ can find answers to that and a lot more on our website.

Kevin Kosar:

So I have heard your definition of legislative effectiveness, which is a very individual-centered definition. That would imply that a legislator has a certain extent of authority or power to raise their own effectiveness score. Put a different way, are the most effective legislators inevitably the individuals who lead the House of Representatives or the Senate, the power brokers, those who have been in committee chairs forever and always rack up the high score by virtue of position, or not?

Craig Volden:

We went in with the expectation that we would find that a tenth-term majority party committee chair would outscore a first term minority party member. And certainly, we find that. But what is more fascinating to us is what members do individually—what legislators can do from Day One to become more effective. We have dedicated a lot of our research around that.

Let me give a few examples. We have looked at freshman members of Congress and the congressional staff that they hire—how many years of experience on Capitol Hill did those staff members have? About a quarter of all new members of Congress hire legislative staff who have zero years of Capitol Hill experience. Others hire a very experienced staff, and those who hire an experienced staff tend to be much more effective, as you could imagine.

I mentioned that we scored people on 21 different issue areas. We also looked at the legislative portfolios that members are putting forward. Some members of Congress are generalists—they sponsor bills in 21 different issue areas. Some are much more specialists. They become the go-to person on an issue such as health or education. The most active members find that sweet spot, where they dedicate more than half of their agenda to something where they have expertise. It might be something from their background career, they have a committee assignment in that area, or their constituents care about it. They are not pulled between making electoral and lawmaking considerations, so they're really specialists in those key areas.

The third thing I would point to as an example is we find that the most effective members of Congress are pretty bipartisan. They attract to their bills members of the other party. That is certainly helpful if you are in the minority party, but what we found is that majority party members that build that broad bipartisan coalition are more effective as members of Congress, and that effectiveness has been consistent even in recent years when we know Congress has been quite polarized.

Kevin Kosar:

Yes, the bipartisan angle is important not least because the margins in the two chambers tend to be very narrow. It is not easy to get your party to be unanimous in support of something, and it is always nice if you can get support from across the aisle.

But it is inevitably a question that gets asked on Capitol Hill: when staff are shopping around a boss's bill, one of the responses they get from other offices is, “Is somebody in the other party cosponsoring or supporting this?” People want to know whether this is going to be a tough effort or an impossible one.

How often are you surprised by the results? Do you often get scores where you think, ‘I've never heard of this person, and yet this person is scoring high,’ or, ‘This person always gets media attention as a serious policymaker, but the numbers don't bear it up.’

Craig Volden:

There is some up and down by the nature of what actually became law in a given session of Congress, but we were partly surprised by the remarkable consistency of who is at the top of our lists from one Congress to the next. But we are more interested in discerning the broader patterns than the individual blips up and down, and the surprises often come to us in those patterns.

Let me give you an example of something that we have found recently and are talking about quite a bit. Over the past 50 years, when Democrats have been in the majority party, it is the liberal wing of the Democratic Party that has its most effective members. But when Republicans have been the majority party, the conservative wing of the Republican Party is actually the least effective.

What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.

What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.

The idea that conservative Republicans are not finding Congress very receptive to the bills they are putting forward—even when they are in the majority—helps us explain and understand why that set of individuals has been asking for more power, looking for reforms, and questioning whether the speaker is on their side. Do they have a strong case that their ideas are not moving forward through Congress? In fact, yes, they do.

Kevin Kosar:

Since we're talking about the elected officials, have any of them taken notice of these scores? What about media and voters? Are they picking up on these legislative effectiveness scores?

Craig Volden:

We release the scores at the end of each Congress—Congresses end in January, and we try to get the scores out there in February. When we do, we get a lot of press coverage. Those who are on our top 10 lists tweet about it, write that up, or promote it. And that finds its way in many cases into campaigns. High performers tend to use those scores to promote their case. I think back to the Iowa caucuses 4 years ago when Amy Klobuchar—as she was running for the Democratic nomination—had a series of t-shirts that she was handing out there saying she was the most effective Democrat in the Senate. On the other end, competitors against those who had low legislative effectiveness scores tend to use those in campaigns as well. The other way that that members and media take notice is through some of those activities and programming that we tend to do on Capitol Hill in line with our mission and with our partners. Our new member guide is there on the orientation activities that we do for newly elected members of Congress. It is not so much how can I manipulate the system to get a higher score, but how can I actually be a more effective member of Congress.

And so that advice about setting up and tailoring one's agenda and building out coalitions and all of the rest is, I think, good advice. It is now advice well-grounded in research and something that many members of Congress are paying attention to.

Kevin Kosar:

That is great: academic research that is affecting reality in a positive fashion.

There are many ways to measure our national legislature. Why is legislative effectiveness such an important concept and metric? Why is it something that you have been willing to spend so much of your time on and develop?

Craig Volden:

At the Center for Effective Lawmaking, we have a vision statement as some organizations do. We envision a Congress comprised of effective lawmakers, strong institutional capacity, and the incentive structure needed to address America's greatest public policy challenges.

I am sure your listeners would agree that we are not there yet—maybe nowhere near there yet—but our focus on legislative effectiveness and the work of our two dozen faculty affiliates seems to be offering a path forward. One of our major research endeavors is what we call our Building a Better Congress project. The Building a Better Congress project has three main buckets.

The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men, which could be used to help organizations that are trying to get more women to run for Congress. Our research suggests that there are certain state legislatures that are working really well as training grounds where members of Congress who come from those legislatures seem to hit the ground running. That tells us something about how our system of federalism works and could be promoted.

The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men,...

The topic of this episode is, What is the State of the Union Address, and Why Does Congress Host It?

Once per year, the President of the United States comes to the U.S. Capitol to deliver a speech known as the State of the Union Address. Usually this happens in late January or early February, but it has occurred as late as March 1.

Both members of the House of Representatives and Senators assemble for this speech, along with nearly all members of the president’s cabinet. Justices of the Supreme Court also are there, as are some other individuals. In modern times it has become quite a spectacle—with television cameras beaming the event to millions of homes.

To discuss this grand affair, I have with me Matt Glassman. He is a senior fellow at the Government Affairs Institute, where he studies Congress. Prior to joining the Institute, Matt worked with me at the Congressional  Research Service for ten years. There he wrote about congressional operations, separation of powers, appropriations, judicial administration, agency design, and congressional history.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Matt, welcome to the podcast.

Matt Glassman:

Thanks for having me.

Kevin Kosar:

Let’s start with the why. Why does Congress host a state of the union address? Does the U.S. Constitution require it?

Matt Glassman:

The Constitution doesn't require, per se, the State of the Union Address as we know it now, but Article 2, Section 3 does sort of contemplate the idea of a State of the Union message. It says the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

So this idea of the president reporting back to Congress on what's going on in the administration and what he would like to see happen in the legislature is contemplated in the Constitution. So, yes, it is there. It's not required to happen every year; it says from time to time. That's been interpreted as annually, but we don't have a State of the Union message every year.

Sometimes presidents don't do it in their last year in office. Sometimes presidents don't do it right after they're inaugurated—they just deliver a different message to Congress. But the idea is rooted in the Constitution and in Anglo-American tradition. It was very traditional for the monarchy to go speak to Parliament as it opened in English history as well.

Kevin Kosar:

So it's discretionary, which means Congress could—if it chooses—refuse to hold a State of the Union address. One could imagine— in these high partisanship times—a House with a Democratic majority that might have refused to allow President Trump to appear or a Republican majority of the House could refuse President Biden's wish to come and speak.

And for president to actually show up for a State of the Union, there's got to be an actual resolution passed, right?

Matt Glassman:

Yes, in theory. Certainly, for the president to come stand on the House floor and talk, he is going to need either the rules of the House and Senate or a specific resolution from the House and Senate to approve that. The President of the United States does not have any right to be in the House of Representatives or in the Senate giving a speech under the House rules. In the Senate rules, the president currently has floor privileges to the chamber, but it is a function of the rules. There is nothing in the Constitution that would allow the president to come give this message in person.

So first, they work out behind the scenes when the president has a date available that works for everybody. Then the Speaker of the House formally sends a letter to the president inviting him to come over. Then a concurrent resolution is passed by the two chambers setting up the joint session where they'll hear the president's address.

It's absolutely correct that, that you could imagine animosity between Congress and the president getting so high that there wasn't a State of the Union as we know it. The president could still send over a letter—that was traditionally how it was done for 19th century. During the Trump administration, people saw the possibility of Nancy Pelosi saying, “You're not coming over. Send a letter and tell us what you think, but we're not giving you a stage in our chamber to do it.”

Now, of course that didn't happen and there's lots of reasons both politically and normatively that you don't want that sort of partisan animosity to upend the State of the Union, but it's totally plausible and you could imagine a situation where it happened.

Kevin Kosar:

And I guess with the chambers being presently divided—Democratic control in the Senate, Republican control in the House—if both chambers don't agree, then it doesn't happen. The president doesn't get to come over, right?

Matt Glassman:

Doesn't get to come over to speak at a joint session that the current resolutions and practice contemplate. But imagine—for instance—that the House Republicans decided for whatever reason that they didn't want Biden to come over for a State of the Union message this year. I think it's totally plausible that Biden might come over to the Senate and deliver his State of the Union address there. Again, that could be filibustered too, in theory—you can imagine situations. But just because you can't get a joint session going in Congress doesn't mean the president can't come over and give an address in one of the chambers. All sorts of combinations are possible.

And this is a level of partisan animosity that even Trump versus the House Democrats didn't create, so it would have to be something sort of even more extraordinary than anything we've seen over the last decade in order to break this tradition.

Now, could you imagine a president of the United States deciding he was done with these in person things, and just sending a letter instead and having someone in his party read it on the floor the way they did in the 19th century? That's also plausible. That would require less partisan animosity. It would just require a president who saw things differently.

I don't think that's likely either. I think most of the time the president believes the state of the Union address is a politically advantageous moment for him and the administration if they do it in person. The letter would sort of downplay it a lot, so I don't see that happening either anytime soon.

Kevin Kosar:

I suppose one could imagine this trend line where thanks to technological advancements over the last 120 years, it's been easier and easier for a president to “go public.” You could have a president who just decides to sit in the White House, do a speech to the nation that way, and basically call up the State of the Union and send over a piece of paper and be like, “Okay, I'm just not putting up with you people.”

Matt Glassman:

Yeah, I think that’s totally plausible. I think the trappings of the State of the Union address give it a little more sort of public influence—a little more. Sometimes in Washington, you get a sense that everybody is watching something like this when in reality, very few people are watching—the Monday Night Football game will vastly outdo the Union address in ratings. But I do think the State of the Union address will get a higher audience than a typical presidential address from the Oval Office or from wherever, so the president see that as somewhat advantageous to getting their message out.

But you can imagine lots of different ways to deal with the State of the Union address, where the climate in the country around a particular issue makes a president decide to completely upend what we expect from a State of the Union Address and just give an address on one topic. We've seen that on occasion in presidential addresses during moments of crisis. Buchanan's address in December of 1860 at the opening of Congress was almost entirely about the slave crisis. Lincoln's First Inaugural was almost entirely about secession. If the moment was more of a crisis situation, you can imagine presidents giving a very different type of address.

Kevin Kosar:

Yeah. So per the Constitution, requiring the executive to report to Congress had two overt purposes. First, getting information from him since the president oversees agencies and has access to their data. It could be useful if he could share this information with the legislature because there is a principal-agent relationship between the legislature and the president. But it's also an opportunity for him to suggest policies for Congress to consider.

What about today? Does the speech have purposes beyond that today?

Matt Glassman:

One thing to know is that those two original purposes reflect the old congressional calendar. One thing to keep in mind was that a typical annual address of the president—which is what they called the State of the Union before it got its modern nomenclature—typically happened in December right after Congress met.

Under the old calendar, Congress had often been out of session since the previous March—or if it was the second session, they had been out of session typically since around June. So there really was a lot for the president to say. The administration had been the government in total for a period of six or even nine months, in some cases, when these annual addresses happened.

So there was literally a lot to catch people up on. There was sort of news you could break about what was going on. I think that is a lot less true now with Congress in session year-round and oversight being an ongoing process. I do not think there's a whole lot of surprises in the president's annual address about the actual state of the union.

In the same way, I think communicating policies for Congress to consider also has a little less oomph than it did in the mid-19th century, simply because—again—Congress is around full time and the president and his administration are proposing policies all the time. So those two sort of natural purposes that the Constitution contemplates probably have shrunk a little bit in their value.

But of course there are other things that the State of the Union address provides. One is an opportunity for the president to do a lot of interest and agency group politicking: to come up with a distributive list of goodies that he can mention to promote or give returns back to different groups in his coalition—be it his partisan political coalition or his administrative coalition of different agencies that he needs to keep happy.

I think this leads to the most important thing about the State of the Union address is that it is what political scientists might call a “focusing event.” The administration has a deadline by which they have got to decide what they believe about certain issues. That is a good thing for the administration. A lot of times in the executive branch, you can sit around debating stuff with no end, but a focusing event forces the agencies to come up with their policies. It forces the White House to choose what their policies are—not only as a priority matter of what their agenda is, but actually what the policies are.

If President Biden comes up to Congress for a State of the Union address in two months and talks about his border policy, he is going to have to have a border policy. That is a good thing—it forces the administration to figure out what its policy is. To that point, it is actually an important deadline on the congressional-executive calendar. Note that it nowadays happens, roughly right before sort of the opening of a budget season. The president's budget usually comes out shortly after the State of the Union, so you can see the address as tied to the administration’s priorities and what it wants to put in its budget.

Kevin Kosar:

And these days—as the head of whichever party he is within—the president is setting the course for the party and reframing the brand in the public's eye to some degree, perhaps in anticipation of the next election. So there is a bit of that PR exercise going on as well.

As I mentioned in my introduction, it is a remarkable event to have members of all three branches of government piling into the same building. There is a whole bunch of other folks too, like members of the diplomatic corps. That prompts a gruesome thing to contemplate—but we got to because terrorism is a fact of modern life. Isn't it a big risk to the continuity of government to have president, vice president, the whole Supreme Court, and so much of the legislative branch all together in this one place? And have they done any thinking about how to mitigate this risk, so we don't end up with a country that has no functioning government?

Matt Glassman:

I think that is obviously a concern. It is quite famous that there is sort of the designated survivor—someone in the President’s Cabinet who doesn't go to the State of the Union address, who stays away from the Capitol and indeed stays away from Washington during the Address.

That was put in place in a Cold War sense where all of a sudden there were ballistic missiles that could blow up the entire city at once to which we had no defense. In some ways, it is more symbolic than useful. It is not clear to me that like the Secretary of Labor would have a whole lot of political authority in the wake of that sort of awful tragedy.

But I do think it is something worth contemplating. I do not think the answer is sort of distribute the people and have the state of the State of the Union address remotely for various people. I think it is important the government comes together, but it does highlight sort of the security concerns. The legislature is a decentralized system to begin with, which is why we do not see a lot of assassinations of legislators—it does not solve you a lot politically. So the time that members of Congress and Congress itself is in danger is when they are all together.

That is why the security on the floor of the House and Senate is what it is. It is why the security following Congress around when it sort of travels in mass. But obviously bringing the administration into sort of ups the ante to it. There is probably not a regularly scheduled event in the United States that has a higher security level than the State of the Union address. If you are ever in downtown Washington on the night of State of the Union, you cannot get within a block of the Capitol—the perimeter really is the biggest perimeter you can imagine.

That does not mitigate all threats, but I do think that there's enough value in the State of the Union Address—and enough value in bringing the whole government together at least once a year—that whatever risks there are that can't be mitigated by the security measures in place just have to be accepted because I think to not allow the government to come together in a whole would probably lose some of the symbolic value of the State of the Union Address.

Kevin Kosar:

Alright, that elides nicely into criticisms of the modern State of the Union Address. I, for one, have groused that it confuses the American public into thinking that the president has way more power than he actually has, and it contributes to this sort of misunderstanding of our system—that the president could just get up there and wave magic wands and make policy happen as opposed to it having to be worked through the legislature in most instances.

Some years ago you wrote a blog post about the State of the Union and here's one thing you wrote in it:

“As many very smart people will undoubtedly tell you today, the State of the Union address doesn’t really matter much. Brendan Nyhan reminded us last year that the instant polling is worthless, that the President doesn’t actually often get an approval bounce, and that unlike a debate there’s no chance of an unscripted moment. John Sides reminded us that any policy or agenda effects from the speech are small at best. And Ezra Klein notes today that the one dimension on which the address may have a strong impact—laying out the President’s policy agenda—is basically a non-issue in an election year with a divided Congress.”

Criticisms—you note them, and I have made mine. Yet you still think it is important. Why is the State of the Union address—in his current modern format—important and worth doing?

Matt Glassman:

I think it is important...

The topic of this episode is, “What is congressional capacity, and why does it matter?”

As regular listeners know, almost inevitably I have a guest on my show. But this episode, you get just me. The reason is simple: I have been working on congressional capacity for years, and I would like to share my thoughts and hear your feedback.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

It is probably not news to you that the American public is not pleased with Congress. According to Gallup, fewer than 8 in 10 Americans approve of the job Congress is doing.

For sure, part of the dourness is not really about Congress. People are annoyed because what media they see on Congress focuses heavily on conflict and crazy behavior by legislators. The news rarely covers instances of Congress doing good things.

That said, it is still fair to say that Congress is not doing well. Most obviously, it has failed to tackle some of the biggest problems facing the nation, like immigration, and often sits back and lets the executive branch and courts wade into these issues. Which is not how our system is supposed to work.

So what is wrong with Congress?

Many scholars, media, and members of the public diagnose the ills of Congress think in terms of the Three P’s: People, parties, and polarization.

It’s Kevin McCarthy’s fault; it’s Chuck Schumer’s fault. If we had better people, we would have a better Congress.

Others point to the parties. The Democrats are out-of-touch liberals. The Republicans are proto-authoritarians. The Democrats and Republicans have sorted into ideologically conformist enterprises. Gone are the days when we had liberal Republicans and conservative Democrats.

Still others emphasize polarization as the cause for Congress’ failures. We are a nation of red and blue voters and states, so Congress itself is polarized. Gridlock and fighting is the result of Americans being grossly in disagreement with one another.

There is some truth to all these contentions. But these explanations have their own shortcomings.

Critically, the Three P’s ignore an important unit of analysis: the institution itself.

The U.S. Congress is an organization—a firm. Like any firm—a business firm, a school, or a music band, Congress’ performance is greatly affected by its capacity. It can only do as much as it is capable of doing.

In the congressional context, capacity can be defined as “the human and physical infrastructure Congress needs to resolve public problems through legislating, budgeting, holding hearings, and conducting oversight.”  Some specific aspects of congressional capacity are its funding, its processes for executing tasks (e.g., how bills go to the floor), its technology for completing its work, how it internally organizes itself, its leadership structure, and its people.

So that is the framework I and my coeditors and coauthors adopted. And this lens for looking at Congress has proven illuminating. What you see is an institution that has experienced escalating demands upon it over the past 50 years yet has done little to empower itself to meet the escalating demands.

Escalating demands

Over the past 50 years, the day-to-day demands on Congress have skyrocketed.

By law, Congress must fund and oversee 180 federal agencies and 4 million civilian and military employees that administer thousands upon thousands of policies and programs affecting the public. Annual spending is about $6.5 trillion, which is seven times higher than it was in 1980 and a dozen times larger than the outlays by the world’s largest corporation, Walmart.

The Senate is obligated to review and vote upon 300 executive branch nominees and thousands of nominees to independent agencies, the military, and the service academies (e.g., the US Naval Academy).

The immensity of federal activity also leads to more demands from the public. In the average year, Americans—whose numbers have swelled 45 percent since 1980—write, email, or otherwise contact Congress between 25 million and 30 million times per year, which amounts to more than 46,000 communications per legislator. That is to say nothing of the escalating demands from interest groups and lobbyists to meet with legislators.

And let me say one more thing about voters: the average member of the House of Representatives has 760,000 constituents. Yet he serves them with a staff of fewer than 20. And the situation in the Senate is even more challenging since there are only 100 senators (many quite aged) who have to collectively serve 330 million Americans.

Yet, very little congressional reform to bolster capacity.

The last major reforms of the institution took place in the early 1970s. And crazily enough, about 30 years ago the people on Capitol Hill thought the public would be pleased if they downsized the workforce of the legislative branch.

Today, legislators have fewer staff (10,000) than they did in 1980 (11,000).

Speaking of staff, the average staffer is 25-29 years old, and most of them will quit their jobs on the Hill before they hit 7 years of experience. They can find more pleasant and more lucrative jobs in the executive branch or the private sector.

Congressional committees, which are supposed to be the engines for policymaking and oversight, also have fewer staff (3,100 in 1980 and 2,300 today).

Congress also has fewer nonpartisan experts working at the Congressional Research Service and other legislative-branch support agencies that help legislators make policy and conduct oversight (from 11,400 in 1980, this figure is down to 7,000 today).

But the troubles do not end there. Consider the committee system, the division of labor with the organization. Which committees work on what legislation—that has little changed in the past 50 years. The House, remarkably, select the chairpersons who lead each committee based heavily upon whether they are good fundraisers and dependable partisans. Knowing something about the subject matter and being good at bargaining with members of the opposite party, sadly, are not the sole criteria for selection to these important positions. The way committees hold hearings looks much as they did 75 years ago. Legislators sit on the dais with one party on one side and the other party on the other side. And they give each witness 5 minutes to deliver a speech and then lob questions at them.

Then there is the legislative process. How about that budget process? We almost had another shutdown on Saturday. We still might in six weeks. The budget process is 50 years old and has very weak incentives for legislators to complete it in an orderly and timely manner. So they do not.

And I would be remiss if I did not talk to you about technology. Newly arrived legislators are often shocked at the sorry state of the technology they have. They are shocked that legislation does not come with “track changes” nor does it typically make clear how it is changing current laws or reference existing programs that serve the same purpose.

Take another example. A few years ago, I was talking to the legislator and he said he was astonished that when he showed up to Congress to work in the House of Representatives, he was handed a pager. He was told that this is members of Congress are notified through when it was time for them to vote. His response was something along the lines of, “why isn't there an app for that?”, but he did not get a good answer. On technology, work processes, internal division of labor, etc., congressional capacity is not where it needs to be.

Conclusion

To be sure, there is some good news.

The House of Representatives created a Select Committee on the Modernization of Congress—which was a bipartisan effort to work on these reforms. That temporary committee worked for a few years and now is a subcommittee in the House that continues to budge reforms forward.

Perhaps of equal importance, I believe that our efforts have begun to help legislators, their staff, the media, and even some voters to recall an important truth: that Congress is the First Branch of our constitutional republic. It is the place where we engage in self-governance and work across and through our differences. And remembering that truth should give us the incentive to upgrade Congress’ capacity so that we can continue to have a representative democracy.

Thank you, and have a great day.

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you’ll share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at @AEI. Once again, thank you for listening and have a great day.

The topic of this episode is, “Delegates to the House of Representatives: who are they and what do they do?”

My guest is Elliot Mamet. He is a Postdoctoral Research Associate and Lecturer at the Princeton School of Public and International Affairs. Previously, he served as an American Political Science Association Congressional Fellow. Elliot holds a Ph.D. in Political Science from Duke University.

Also important to note is that Dr. Mamet spent time working in the office of Washington, D.C. delegate, Eleanor Holmes Norton. All of which makes him a great person to ask the question, "Delegates to the House of Representatives: who are they and what do they do?"

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Welcome to the podcast.

Elliot Mamet:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start with a really simple question. Listeners are all too familiar with the fact that the House typically has 435 members. But they also have delegates. How many delegates are there to the House of Representatives?

Elliot Mamet:

Currently, there are five delegates to the House of Representatives. They serve from Washington, D.C., Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. There's also a Resident Commissioner—a non-voting member—from Puerto Rico. So there're six total non-voting members in the House.

Kevin Kosar:

Representatives in the House come from districts these days. Where and who do these delegates and non-voting members represent? And is represent even the correct term for what their role is?

Elliot Mamet:

The non-voting members of Congress represent Americans who live outside the several states. Throughout their entire history, they've represented people who don't live in states—whether that's in the federal enclave of the District of Columbia or in territories either on the path to statehood or not on the path to statehood. Today, they represent 4 million Americans. Of that group, 3.5 million live in the United States territories—those people are 98% racial and ethnic minorities—and the remainder are the residents of the District of Columbia who are majority black or Hispanic. So the delegates represent overwhelmingly non-white constituents, and they represent a group of Americans who lack the same citizen rights and lack political equality to those people living in the several states.

Kevin Kosar:

Now, on this program, there's been a number of episodes where I and a guest have talked about earlier Congresses—the Congresses at the founding, early 20th century, etc.—and non-voting representatives just didn't come up in the conversation. Are they a recent development, or have they always been with us?

Elliot Mamet:

Great question. The non-voting representative has been a feature since the earliest Congresses. The institution dates back at least to 1784 when a committee chaired by Thomas Jefferson suggested that territories prior to becoming a state would be able to send a delegate to Congress with the right of debating but not of voting.

That proposal was codified by the Northwest Ordinance, and the first delegate sent to Congress was James White of the territory South of the River Ohio, who was admitted to be a delegate to Congress in 1794. And since that time—with a single exception—non-voting members have sat in the United States Congress.

For much of American history, those delegates represented territories on the road to statehood. That changed in two different periods. First was in 1898 with the Spanish-American War, where the U.S. acquired so-called “unincorporated territories,” which were not destined for statehood, including Puerto Rico and the Philippines. Those territories were given resident commissioners, non-voting members of Congress. And second, in the 1970s, Washington, D.C., Guam, the U.S. Virgin Islands, and American Samoa were given non-voting seats. Even though those places didn't seem like they were on the road to statehood, Congress thought it was a way to incorporate the voices of citizens living outside the states in the federal government. The most recent delegate added was the delegate from the Northern Mariana Islands. And last year, the House Rules Committee held a hearing on admitting a delegate from the Cherokee Nation, which has a right to a delegate to Congress under an 1835 treaty, so that issue is pending before the Congress—the Congress has not acted on that yet. But that just goes to show that delegates have been a feature of Congress since its earliest days and I think have played an important role in representing people living outside the states in our national legislature.

Kevin Kosar:

First I want to offer a comment, and then a follow up question. The first comment is for listeners: I want to underscore that we are talking about the House of Representatives. We're not talking about the Senate. We've not had these in the Senate.

But you mentioned earlier that delegates and non-voting members in theHouse were coming typically as a product of a territory being on the path to statehood. The 70s sounds like it was a qualitatively different situation or motivation and part of it sounds like an idea that if you are going to be Americans, then you have to have some sort of representation within the People's House in the name of fairness. Were there other motives in the mix there? Was it, “If we have them, perhaps this will boost the effort to move down the road to statehood,” or some other sort of factors that came to play?

Elliot Mamet:

Great question. So I have a project with Austin Bussing of Trinity University on the expansion of the delegate position in the 1970s. And what we find is that the overwhelming driver of that position was racial preferences. In other words, the delegate position was championed by civil rights organizers here on the mainland and advocates in the territories themselves as a way to give voice to Americans living outside the states. It was also blocked on racial grounds from conservative Southern chairmen in the House, for instance. The D.C. delegate position was also deeply tied to racial politics. D.C. home rule is often thought of as a product of the civil rights movement, and the D.C. delegate was a way to give this then-majority black city some sort of representation in Congress. So we argue that racial preferences were central to understanding why the four delegate seats were added in the 1970s.

I'll also say to answer your question, Kevin, politics mattered—political entrepreneurship mattered. One example of that was Philip Burton, the famous liberal leader in the Democratic Caucus. He advocated expanded seats for the delegates, both because he thought it was the right thing to do—it comported with ideas of political equality and civil rights—and also because it gave him increased power in the Democratic Caucus. He famously lost his leadership election to Jim Wright by one vote in 1976, and if it wasn't for the delegates, he would have lost it by more. His biographer said if Burton couldn't rule the Congress, at least he could rule the territories. And so he was very focused on territorial seats, both because he thought it was the right thing to do and as a way to gain power within the House.

Kevin Kosar:

Interesting. They're called delegates and non-voting members. They're not called representatives or just members. That implies that they are sort of the same but also different in terms of their powers within the chambers. Walk us through some of the similarities and the differences between them and a typical House member.

Elliot Mamet:

Before I get into that, when you meet a delegate on the street, it's polite to call them congressman or congresswoman. I don't think they like to be called delegate themselves.

But it's a great question. On the surface, these non-voting members of Congress seem very similar to their 435 voting peers. They have a congressional office, a website, they field staff, they earn the same salary as others. Importantly, they can sponsor and co-sponsor legislation—a delegate to Congress, Eleanor Holmes Norton from D.C., has co-sponsored more legislation than any other member of the House or Senate in history. They can make many parliamentary motions. They can serve on and vote in committees. They can even accrue seniority to become chair or ranking member of committees or subcommittees. They can move an impeachment and serve as impeachment manager, as Delegate Stacey Plaskett of the Virgin Islands did during the Trump impeachment. They can preside in the Committee of the Whole and—during certain congresses—they can vote in the Committee of the Whole if their vote is not decisive.

So those are some similarities. Let me get to the differences.

Non-voting members, when they vote in Committee of the Whole, their vote doesn't count if the vote is decisive. Five times in congressional history, the Congress has immediately risen from Committee of the Whole to vote in the full House on an amendment because the votes of the non-voting members were decisive. This most recently happened on July 13th. There was a vote on an amendment to the NDAA proposed by Mr. Ogles that would ban DEI in the military, and the vote—including the non-voting members—was 216 to 216, so their vote was decisive. The House had to immediately rise and vote without them. The vote was 214 to 213, so the amendment—which would have failed—was agreed to. So that's one of the differences.

There are important other differences too. The non-voting members cannot vote on final passage of legislation, which means that on an array of federal laws which affect people living in Washington, D.C. and the territories, the representative does not have a vote on the enactment of that law. Under the Constitution, they cannot vote for Speaker of the House. Because they can't vote on final passage, they can't make a motion to reconsider. They cannot preside in the House. Lastly, they cannot sign discharge petitions. And I'll just say that members who die in office or resign, their signature still counts on a discharge petition. But the duly elected delegates from D.C. and the several territories cannot sign a discharge petition, so a deceased member of Congress has more procedural power in this way than an elected delegate representing American citizens in D.C. or the territory. So those are some of the important differences between non-voting members and their voting peers.

Kevin Kosar:

Got it. If I just pause for a second—and let me know if this question, it pulls you afield—listeners might be thinking, ‘the House goes into Committee of the Whole? What does that mean?’ If you could just briefly illuminate on that for listeners.

Elliot Mamet:

Committee of the Whole is a procedural device by which the House considers amendments to pending legislation. The House generally goes into Committee of the Whole when there's two or more amendments offered. In certain Congresses since 1993, the delegates have been able to vote on those amendments as long as their votes are not decisive.

Kevin Kosar:

Perfect. So earlier you mentioned Representative Phil Burton's quest to become the top dog, and he was defeated by Jim Wright, and you mentioned that these delegates, non-voting members had a role. What role do they play in the selection of the speakers? They can't vote on the floor, but they can do what?

Elliot Mamet:

So the non-voting members of Congress can vote to elect party leaders within the Republican Conference or Democratic Caucus. They get a vote internally. And even recently, we saw that Mr. Scalise picked up the votes of the two Republican delegates and one Republican resident commissioner in the internal Republican leadership election. But when it comes to the floor, the delegates and resident commissioner may not vote. Their name is not called because they're not elected members of the House representing the several states, so they're disenfranchised in terms of picking who the Speaker of the House may be.

Kevin Kosar:

But within the conference, they get to vote. And in a close race—which it seems like those are getting more and more common, at least for the GOP these days—that could be a big deal. Could their votes be decisive there?

Elliot Mamet:

Certainly, they were just about decisive in 1976. And as someone who's trying to become party leader, every vote matters, so appealing to these territorial delegates or the delegate from the District of Columbia can be important to solidifying support within the party. One way to accommodate them is to make changes in the House rules that would win their support. It was speculated this year—we have no way of knowing, though—that Speaker McCarthy decided to give the delegates a vote in Committee of the Whole to win their support in the conference. The 118th Congress is the first Republican-controlled House that has given the delegates the right to vote in Committee of the Whole, and it may have been a way for McCarthy to at least get those three individuals to support him within the Republican Conference.

Kevin Kosar:

Really interesting. If I may, I'd like to double back to something you mentioned earlier, which was that possible delegate from Cherokee Nation. What's the process by which that could happen?

Elliot Mamet:

Great. So just to give listeners a sense of this issue, there is an 1835 treaty called the Treaty of New Echota, which guaranteed the Cherokee Nation a delegate in the United States Congress. That treaty right has never been vindicated. Congress has never sat a delegate from the Cherokee Nation.

In December 2022, the Rules Committee held a hearing on seating the delegate and heard from experts at the Congressional Research Service and others on this topic. So there's many issues with ceding a Cherokee delegate that we don't know the answer to. One of the issues is how that would proceed; different scholars and advocates have different points of view. One point of view is that the House rules alone could be enough to seat a Cherokee delegate since this delegate would only be a member of the House. Another point of view is that Congress would need to pass a law actualizing this treaty right. Every other delegate to Congress has been authorized by statute.

But on the other hand, every other delegate to Congress has always represented a geographical area, whether that's Washington, D.C. or one of the territories. This individual would represent not a geographical area, but the Cherokee Nation writ large who are spread across multiple areas, so it's an open question before the Congress how—if they chose to seat the delegate—they would go about doing so.

Kevin Kosar:

Wow, that is really interesting. Are there any other possible delegates who might come up? Are there other American Indian tribes or others who have not been able to get into the game as they should?

Elliot Mamet:

The 1835 Treaty of New Echota is the treaty considered to have the clearest language providing a right to a delegate. But one question is which group is entitled to send a delegate. There's three different native tribes that all claim that treaty right. Two of them have designated a delegate. So that's an issue for Congress.

Indian tribes assert, provide a treaty delegate. And some of those issues were before the Rules Committee’s hearing last year.

The other thing I would say to your listeners, Kevin, is there are a variety of informal representatives from sub-state entities who come to Congress but are not formally admitted. For those living in the District of Columbia, you'll know that we elect two shadow senators, and those individuals are unpaid D.C. officials sent to represent D.C. in the US Senate and lobby for statehood. They're not admitted as Senators, they have no official capacity, and if they want to watch a Senate proceeding, they have to go to the public gallery. So there are other appointed officials representing sub-state entities who...

The topic of this episode is, “How is Congress involved in foreign policy?”

My guest is Jordan Tama, a Provost Associate Professor at American University’s School of International Service. He is the author or editor of five books on foreign policy. They are:

· Polarization and US Foreign Policy: When Politics Crosses the Water’s Edge, co-edited with Gordon M. Friedrichs (Palgrave Macmillan, Forthcoming)

· Bipartisanship and US Foreign Policy: Cooperation in a Polarized Age (Oxford University Press, 2024);

· Rivals for Power: Presidential-Congressional Relations, sixth edition, co-edited with James A. Thurber (Rowman and Littlefield, 2018);

· Terrorism and National Security Reform: How Commissions Can Drive Change During Crises (Cambridge University Press, 2011); and

· A Creative Tension: The Foreign Policy Roles of the President and Congress, co-authored with Lee H. Hamilton (Woodrow Wilson Center Press, 2002).

Jordan also has written many papers on foreign policy, so it seems to me he is a great person to have on the podcast to help us understand how Congress is involved in foreign policy.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the podcast.

Jordan Tama:

Thanks so much for having me on, Kevin.

Kevin Kosar:

Some months ago, our listeners heard me chat with Alissa Ardito about the formal powers of Congress in foreign affairs. We talked about things like how the Senate has the authority to approve treaties and to consider nominees to fill high positions in the State Department, the military, and other agencies that are involved in foreign affairs. We also talked about the fact that Congress has the power to declare war and the discretion to fund and create agencies that deal with matters overseas, like the United States Agency for International Development. And we also pondered in a philosophical manner about how we're supposed to have a representative democracy influencing foreign affairs.

But I wanted to bring you in because you're so well prepared, well-studied, and scholarly on the matter of where the rubber hits the road and how the wheels actually turn. So let me start by asking, where should the bewildered citizen first look when trying to understand how Congress is involved in foreign policy?

Jordan Tama:

Congress is involved in foreign policy in a lot of ways, more than most Americans realize. This includes both Congress exercising its formal powers and Congress exercising influence in more informal ways. I'll say a quick word about both of those areas, the formal and informal powers.

Certainly, the formal powers are important, and the most important of these tends to be the power of the purse. When it comes to spending on diplomacy, defense—and defense is half of the discretionary federal budget, so that's huge—and foreign aid, the president simply can't act without Congress appropriating the funds. This gives Congress a power that it exercises every single year, and in recent years, Congress has sometimes challenged the president assertively on foreign policy spending. One example of that was when Donald Trump was president. He wanted to cut the budget of the State Department and the US Agency for International Development (USAID) by a third, and Congress said no and instead maintained the budget at roughly constant levels, which was important in allowing the U.S. to continue playing an active role in the world and providing foreign assistance to other countries.

Congress also routinely influences foreign policy by passing legislation that authorizes or mandates foreign policy stances or actions. For instance, Congress has mandated sanctions in recent years on many countries, including Russia, China, Iran, and North Korea. This is an area where Congress tends to be quite active legislatively.

But Congress also influences foreign policy through its informal powers, which can include public statements by members of Congress—particularly the more prominent members of Congress like the chairs or ranking members of the key foreign policy committees, or the House or Senate leaders. It also can include trips to foreign countries by members of Congress. It could include private meetings between members of Congress and senior executive branch officials. I'll just say a quick word about a couple of these informal tools.

Public statements by members of Congress on high profile foreign policy issues can sometimes be pretty important because they can generate a lot of media attention, and that can shape public attitudes. So one recent example of this is “Make America Great Again” (MAGA) Republicans in Congress along with Donald Trump and some of the MAGA Republicans running for president have been making public statements in opposition to US aid to Ukraine. And this seems to be moving Republican public opinion away from supporting US aid to Ukraine, even though legislatively the MAGA Republicans don't yet have the majority on that issue in Congress. Foreign trips can be important. A lot of members of Congress have gone to Taiwan in recent years, and this can send a strong signal to Taiwan, can infuriate China, and complicate things the Biden Administration is trying to do with regard to China. And then there're private conversations going on all the time between members of Congress and executive branch officials. Sometimes these can be important, but they're not going to be reported in the media. But that sort of thing is happening all the time.

Kevin Kosar:

One of the things you mentioned is that both individual members of Congress and the committees who have formal jurisdiction have a role to play. And that's interesting because that means you have a president and his foreign policy apparatus, but you also have 535 other people who can be getting involved in these things in one way or another, which—like you said—doesn't create a necessarily clear message all the time for foreign nations to pick up on. They instead may be getting a bit of a cacophony, right?

Jordan Tama:

That's absolutely right, and on a lot of foreign policy issues, there is no consensus position coming out of Congress—there're just a lot of different positions. When that's the case, Congress is often not going to be able to pass legislation on the issue, so all you get from Congress is a lot of different messages. But those messages can sometimes still be quite important, and there are issues where there is a prevailing position in Congress. So I'll again go back to something during the Trump Administration. Trump was very critical of NATO and he privately talked about the idea of withdrawing from NATO. Members of Congress who supported NATO heard that and they passed a resolution reiterating US support for NATO—even though there are some members of Congress who are on Trump's wavelength on NATO, the majority was not. So, it's a mix. There are some issues where it's a complete cacophony and Congress is not going to be able to act legislatively at all, and there are others where it's still possible to muster a majority.

But when there's a cacophony, it does weaken the US’s position in the world because it makes it harder for the US to speak with one voice. It makes it harder for other countries to trust US commitments because when they hear a lot of different things coming out of Congress. The president may be saying to them, “We're ready to negotiate some long-term partnership with you,” or, “We're ready to offer you a long-term aid package.” But if foreign governments hear members of Congress criticizing that idea or saying something entirely different, they're going to question whether they should enter into this partnership with the US or whether they can trust the US, because who knows who's going to be president in a few years or what Congress is going to be doing in a few years. So that is a real problem for the credibility, reliability, and reputation of the US.

Kevin Kosar:

Certainly it complicates things, and since the United States is not a parliamentary system—but a separation of power system—it's probably even more difficult for foreign audiences to understand what's going on. When is a legislator popping off not something to be paid much attention to versus what he’s saying is relevant because this guy chairs the Foreign Affairs Committee or he has some influence? Now, is it possible—as a generalization—to characterize Congress as leading on foreign policy issues or following and reacting to the president, or is it just issue by issue?

Jordan Tama:

Certainly, the standard view of Congress is that it follows the president on foreign policy. I think the reality is more nuanced than that. Congress does often follow the president, but there are many cases where it's leading on foreign policy. The cases where it's leading, though, tend to be issues that are a little less salient.

But certainly, the president leads overall on foreign policy. The president is usually the first mover on foreign policy, thanks to certain institutional advantages. Compared to Congress, the president has access to more extensive and up-to-date information about what's going on around the world. The president is getting regular reports from the intelligence community and US diplomats, who are more up-to-date than information that's coming into Congress on a day-to-day basis. And the president can usually act more quickly than Congress. Even when some members of Congress want to do something, they may not be able to persuade their colleagues to go along, may not be able to get legislation approved.

Certainly, when it comes to the use of military force, the president is usually in the driver's seat. Typically, when use of the military is on the table, the president is the initiator, and then Congress is left to endorse the use of military force, criticize it, or simply do nothing. And often Congress is unable to reach consensus and so just doesn't take any kind of action as a unified body. As a result, even though the Constitution gives power to declare war to Congress, there've been lots of military deployments in recent decades by presidents that were not authorized by Congress, and Congress has more or less sat on the sidelines regarding that decision.

But there are plenty of other issues where Congress does lead on foreign policy. This is often in the form of members of Congress pressing for the US to pay more attention to a certain foreign policy issue—a “do more” on a foreign policy issue that some members of Congress feel is being neglected. I'll give an example from my own experience on this.

A decade ago, I served as a fellow on the Tom Lantos Human Rights Commission in the House—this is the body with the charge of elevating attention to human rights in Congress—and in that role, I was supporting the work of Congressman Jim McGovern, who is the Democratic co-chairman of that Commission. And I assisted him as he and some like-minded members of Congress spearheaded the enactment of a law called the Magnitsky Act, which placed sanctions on Russian government officials who had committed major violations of human rights. This legislation was entirely an initiative of members of Congress. It was resisted by the Obama Administration because the Administration thought it would antagonize Russia and hurt U.S. relations with Russia. But Congressman McGovern and his allies on the Hill pushed it through and Obama signed it reluctantly because it had so much support in Congress. This type of thing happens regularly—there is congressional entrepreneurship on foreign policy on certain issues that are priorities for particular members of Congress. There are members of Congress who really care about certain issues and they push for more attention on those issues.

Kevin Kosar:

Your example is a good one and actually spurred me to remember that, in more recent years, we've seen Congress lean in on the issue of the cruelties towards the Uyghurs in China, for example, and on a whole variety of trade-related issues. And as you referenced, the idea of sanctions being a frequent tool that Congress leans in on felt to me that they were way ahead of where the president was.

Jordan Tama:

I think that's exactly right. The Uyghurs is an excellent example of that. Congress passed legislation imposing sanctions on China for human rights abuses against the Uyghurs. This was not something President Trump would have wanted to do, and Congress has passed similar bills targeting Chinese human rights abuses in Hong Kong.

Even though our recent US presidents have had tough stances toward China, these are bills that presidents have not been enthusiastic about because they want more flexibility. They don't want Congress to mandate these laws that bind their hands because then the president doesn't have the flexibility of being able to negotiate and wield the levers of carrots and sticks with regard to a foreign government. Congress in these cases is often restricting the president's flexibility, and that's a common source of tension between Congress and the president.

Kevin Kosar:

Absolutely, and it gets at that difficult matter of democratic accountability. It's understandable a president would want to have an absolute free hand to be able to cut a deal. Negotiations are messy—the president’s going to be negotiating with a country on multiple topics where issues are linked and decoupled, so they might well bristle at anything that comes in and curbs that authority. At the same time, foreign policy is ultimately American policy, and there's got to be some sort of democratic accountability, and that's what the legislature is for.

Jordan Tama:

That's absolutely right, and this is a question I ask my students often, “Are we better off with a more active Congress or with a dominant president?” And I think this is the tradeoff: a more active Congress makes foreign policy more accountable to the American people, more representative of the wide range of views of the American people. On the other hand, the president is often more attuned to the overall national interest. Sometimes there’s tension between what might be in the overall best interest of the United States and what might best represent the views, perspectives, and interests of particular parts of the American population that are represented most effectively in Congress. So this is a real tension and trade-off.

I don't think one answer is more right or better or more important than the other, but I think tension is at the heart of our system and it really comes through in foreign policy in particular.

Kevin Kosar:

Certainly that trade-off between what's good for the nation as a whole versus localities. We saw that issue relitigated or debated again when we had this effort to renegotiate NAFTA. The argument was, “Whatever great things it did for the nation as a whole in the aggregate, the costs on particular populations (e.g., textile workers, etc.) were too high, so we need go back and change the agreement to get the trade off to work a little bit better.”

Jordan Tama:

Right. Yeah, that’s right.

Kevin Kosar:

So as a kid I remember hearing the phrase, “politics stops at the water's edge,” and I don't remember if the context was in discussing the United States at war or if it was just a more general phrase that was used to justify the president having a freehand in foreign policy. You use those words in the title of one of your books, as listeners heard. Do legislators tend to curb their divisions to present a united front to the world, or is this more an ought statement—an executive wish that politics would stop at the water's edge, but they just don't?

Jordan Tama:

It's more the latter. It's an ought statement. The notion that politics stops at the water's edge has been expressed often in discussions of foreign policy since the early Cold War days. It was really in the early Cold War when that phrase became commonly used. It was in the context of proponents of policies of containment toward the...

The topic of this episode is, “Can Congress access classified information?”

My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.

We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Daniel, welcome to the podcast.

Daniel Schuman:

Thanks so much for having me.

Kevin Kosar:

I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?

Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?

Daniel Schuman:

Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.

Kevin Kosar:

Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?

Daniel Schuman:

We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.

Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.

But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.

But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”

One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.

There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.

Kevin Kosar:

From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.

Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?

Daniel Schuman:

That's a good question.

Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.

There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.

But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.

So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is provisioned, they often don't have staff support to help them understand what it is that they're looking at, which is fundamentally problematic.

Kevin Kosar:

The matter of access—actually being able to see it—brings up a basic question of where do members of Congress get to see it. And I'd be remiss if I didn't mention an infamous moment that occurred during the second Bush presidency where some folks in Congress wanted to get some information on things that were happening in the Middle East post-9/11. And when they spoke to the executive branch and the president's people and said that they wanted to learn about this topic and see the classified information, they were informed that if they wanted to see the information, they had to meet over in an executive branch building. And by the way, you would not be able to bring in a notepad, a pencil, or anything else. The fact that the executive branch is actually physically and digitally where this material rests for the most part means that the people in the executive branch have control—it's in their hands.

So when Congress does get to see this stuff, how do they see it? Are they always stuck going over to the executive branch? Or can they see it somehow in the Capitol or their offices or something else?

Daniel Schuman:

That’s a really good question. It depends on the level of classification and other sort of other things as well.

Materials that are at a low level of classification, you're actually allowed to send it by US Mail. Things that are at low levels of classification, a member can obtain it and they can keep it in a safe—there's a special GSA approved safe where they can keep those matters—then you sign it in and sign it out. That's also how it works in the executive branch, which kind of explains some of the leaks that you see. At higher levels, there are these special rooms called the SCIF, which are basically Faraday cages—they're designed to be impervious to surveillance. There’re armed guards and you go into these rooms and you can look at the documents. Sometimes the person from the executive branch might bring it over and have it chained to them. There’re also a number of classified email systems (e.g., SIPRnet), where—in theory—you can email people, ask questions, and get a response. But while the executive branch's network is widely available throughout the executive branch, in Congress, they limit how many people you can email. So there're all sorts of weird limitations in terms of your ability to reach out and ask people questions. Congress largely gets the short end of the stick.

Your example is a good one, but my favorite example is when [former Senator] Jay Rockefeller was briefed in the early 2000s on the unlawful domestic surveillance program that the Bush administration had stood up, they told him that he couldn't tell anybody else, that he couldn't have staff advise him. So the only memorialization of this is a note that he wrote to himself in pencil along with the file that was kept in wherever they did the briefing that basically says, “I think this is unconstitutional, but I'm not allowed to talk to anyone else, so I'm putting my objection here.” And that was it.

This, of course, leads to another problem, which is, “Okay, the president has told you of this thing. Who else can you tell? Can you tell your fellow members of Congress? Can you release this information to the public? Now that you've got it, what can you do with it?” Members are often not willing to do anything because they're following the advice of the Office of Legal Counsel at the Department of Justice, which reflects the perspectives of the executive branch and not what the law actually is.

So you go through great lengths to get access. You don't always have the context for what you're looking at. You're often told that you can't have staff support or the staff that are supporting you are not your people. Then there're restrictions in terms of what you can do with the information that you've received, which doesn't work well at all in a representative democracy, but that's the system that we have.

Kevin Kosar:

Yeah, the Rockefeller example is a juicy one because if he's hearing something and thinking to himself, this is unconstitutional, as a guy who took an oath upon taking office, part of which is, “I shall uphold the Constitution,” you would seem to have an imperative to speak up.

But setting that aside, there certainly have been incidents where members of Congress have proudly released classified information, not just leaking it on the down-low to media and giving it a little spin to create the narrative they want, but just letting it fly. The example that comes to mind for me was when Alaska's Mike Gravel basically went on the floor of chamber and just put it in the public record. Do you remember that incident?

Daniel Schuman:

I thought it was in his subcommittee. Like, there's video of this, right, where he's like crying as he's reading parts of the Pentagon Papers, I think they were, into the record. Because he thought that that was going to be the end of his career.

Kevin Kosar:

And of course it wasn't. He was not locked up in a cage by the executive branch for releasing this information. Yet so many members do think that the sky will fall upon them if they do this sort of thing in the open.

Daniel Schuman:

It's funny because he found an interesting way to do this. As you know, there's Speech or Debate Clause protection. So if you do things as part of your official duties, you can't be prosecuted elsewhere for it. If you read it into the record, that's fine. In the text of the bill—I'd love to see someone leak classified information in a bill or a resolution, but that has never happened. But in theory, that could be considered an official duty. But if you put in a press release, you're fair game. There is a mechanism for the release of information the executive branch has deemed classified, which is that the House Intelligence Committee or the Senate Intelligence Committee can put forward a resolution that ultimately is passed by the chamber through a very long convoluted process to release information to the public. That's only happened, to my knowledge, only once and it happened in the House. That doesn't declassify the information, so you're still not allowed to look at it if you hold the clearance, but it actually did release the information to the public.

And it's problematic because only the Intel committee can do it. You have to play “Mother, may I?” with the executive branch. You pass a resolution that goes to the White House and they say, “We'd like to release this.” And the White House is like, “You can't release this.” It's like the Passover story, just being denied again and again. So then they pass the resolution, it goes to the chamber, and the White House gets an opportunity to weigh in again. Then they can have a secret debate, in which they can decide whether to release this information.

Just one more point that I find interesting. In the 19th century, the Senate largely operate in closed session for treaties and executive nominations because of the idea that this information should be confidential and so on and so forth. And what happened is that the press would get their hands on draft treaties and draft legislation all the time. Today, Congress largely does not operate in secret on the floor; it will do things in the committees. Many parts of the executive branch operate largely in secret, and we see information released all the time; sometimes officially because the White House views it as useful to them, and sometimes unofficially because you have leakers in the press motivated by good reasons or bad, or because the information is stolen, lost, or has other problems. It's interesting how much of our understanding of the world is shaped by information that the executive branch did not want released, but ultimately was beneficial to our democracy to know what was going on.

Tom Blanton over at the National Security Archives says that there shouldn't be that much information that's classified and what's classified should be highly protected. We live in the opposite situation where there's a lot of information that's classified and the protections for it aren't great. I would just add that our best accountability mechanism, which is the legislative branch, is the one that is more thwarted than anybody else in terms of getting access to this information that they need to do their jobs.

Kevin Kosar:

Yeah, having mentioned, what happens when classified information gets—not formally declassified, but—just released in some way, shape, or form, I feel obligated to mention this little story on the weird situation it creates for the...

The topic of this episode is, “What does the U.S. Government Accountability Office do?”

To answer that question we have Gene Dodaro. He is the eighth Comptroller General of the United States—that means he is the head of the U.S. Government Accountability Office (GAO). He has held that position since December 2010. Prior to becoming the top dog at this government watchdog agency, Gene held other executive positions at GAO, including Chief Operating Officer. Remarkably, Gene has spent a half of a century at the agency. So, with all that experience I can think of nobody better to ask the question, “What does the Government Accountability Office do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Gene, welcome to the program.

Gene Dodaro:

It's a pleasure to be with you, Kevin.

Kevin Kosar:

Let's start at the very beginning. GAO was created a century ago. Why

Gene Dodaro:

GAO was created in 1921—right after World War I. The government had created a large debt during that time in order to promulgate the war, and there was concern about having a better, more disciplined way to handle the federal government's budget process. In the same legislation in which we were created, the Bureau of the Budget—which is now known as the Office of Management Budget (OMB) in the executive office of the President—was also created, and the very first requirement was put in place for the President to submit a budget annually to the Congress. Then GAO was placed in the legislative branch in order to provide a check and balance on the receipts and expenditures of federal funds and the proper application of those funds to meet the intent of the appropriation legislation for the Congress. So it was an arrangement put in place to provide more fiscal discipline to the federal government's budget process and execution.

Kevin Kosar:

At that time, GAO had a different name, which to some degree reflected its more limited mission at the time. What was it called back then?

Gene Dodaro:

It was the General Accounting Office. That's what it was when I first joined GAO in 1973. But at that time even, we were doing more than accounting, but that was our original name—the General Accounting Office.

Kevin Kosar:

It seems that fundamentally GAO was initially established to deal with a basic kind of principle-agent problem that Congress faces, which is: Congress as the principle passes a law puts money towards achieving the objectives in the law, but then the job of actually spending the money and doing the execution is over in the executive branch.

In terms of visibility and understanding, “Is this money going where it should go? Is it being used improperly?”, how is Congress to figure that out other than by hauling executives over and asking them, in which case you're relying upon information they provide. So GAO has the ability to get into the books of agencies, and to follow the money.

Gene Dodaro:

Absolutely, Kevin. One of the roles of GAO is to make sure that the appropriation laws enacted by the Congress are properly implemented. We audit the federal government's consolidated financial statements every year, and we’ve worked to create an arrangement where the Inspectors General of each major department and agency audit or arrange for independent audits of the books of the financial operations of each federal agency across the federal government. And then we review that work. It's done of course with our methodology, and then we audit some agencies individually, like the IRS for example. We audit all the receipts that they collect for the federal government. We audit the Bureau of Public Debt, we audit the Federal Deposit Insurance Corporation, and then we review all these other audits across government and then issue our report on the government's consolidated financial statements. We also issue legal decisions that anyone has a question in Congress about the proper application of the funds and whether it was done in accordance with appropriation law.

So we're very much in the business of oversight. Congress is very resourced by the executive branch, and that's why they need a strong GAO in order to provide that oversight over them, so the system of checks and balances in our government work properly and that the executive branch properly executes the laws that are put in place for Congress. And we've grown over the years to not just on fiscal issues, but also looking at whether or not government programs and activities and everything the federal government does is accordance with the authorizing legislation of the federal government's activities.

Actually, only about 10% of what we do now is in the original role that we had back in 1921 in the financial management area. The vast majority is looking to see whether programs, policies, regulations, and other activities put in place by Congress are operating as intended, and to make sure the government is operating as efficiently and effectively in accordance with congressional direction as possible, or whether there's need to make refinements and regulations and to help Congress with their fundamental oversight functions as well as their appropriation and responsibilities.

Kevin Kosar:

So the listener who surfs over to gao.gov and starts scanning all the great stuff you have there, might see the term "bid protest" and say, "Huh, what is that about?" What is bid protest and what's GAO's role there?

Gene Dodaro:

We've had that role for decades through the Competition in Contracting Act (1984). Every year, the federal government spends $500 billion or more to procure certain services items, etc. If you're a contractor that bids on a government contract and you don't win and you're concerned that the federal agency or department didn't follow the laws or things weren't properly clear in their procurement process or you think you weren't treated fairly, you can come to GAO and file a bid protest and say you don't think this was followed for the following reasons. GAO will issue an opinion within 100 days as to whether or not we sustain the protest or deny the protest.

Sometimes the agencies—once the protest is made and understanding the concerns that are being had—will take immediate action to rectify the situation. And so we have a team of highly skilled procurement experts in law here at GAO in our Office of General Counsel. They'll hold hearings, they'll take documents from the protestors and agencies, and then eventually they'll render a decision. We probably get about well over 2,000 of these bid protests every year. Competition for federal contracts is key. And in some areas there's been consolidation in the industries, which makes the competition a little bit more intense.

Kevin Kosar:

So I want to talk a little more about something you alluded to already, which is that GAO had this more limited mission 100 years ago, and it's subsequently been expanded. And if memory serves, one of the first expansions occurred around 1974. This was a period when Congress as a whole had just decided to bulk up its power. It was tired of being pushed around by the executive, whether it was President Nixon or President Johnson, and it just started investing in itself. It created a Congressional Budget Office, it created a new Budgeting Act, it expanded the Legislative Reference Service into the Congressional Research Service, invested in more staff, and it gave GAO more to do.

What was that first expansion in the early '70s?

Gene Dodaro:

The first one came in 1970 when our role was expanded to include program evaluation plus all the financial stuff that we have. We rarely had anything taken away, it has been added to our responsibilities. So that was first, and you're exactly right. In 1974, there was legislation passed in the Budget Control and Impoundment Act, and previously certain presidents had tried to not spend money that Congress had appropriated and withhold the funds. There was a lot of concern and debate about whether that was constitutional or not, so there was eventually a law—an agreement—worked out, where presidents could submit what are called rescissions that where they would not spend the money that Congress has appropriated, but Congress would have to be notified. They would be given 45 days and they had to approve that rescission in order for it to take place. If not, then the executive branch was to then spend the money in accordance with congressional direction. There was also a different type of proposal called a deferral, which the President would defer the money, and unless Congress acted against that within certain timeframes, then that could be deferred. But most of its focus is on the rescission part. 

Once there's a special message from the President to the Congress in order to rescind, make a proposal for rescission, and occurs in these special messages, GAO has 10 days to inform the Congress of what the impact of that rescission would be on the particular programs or activities entail. And then Congress then acts within 45 days. Now, if Congress doesn't act affirmatively, the money is to be released. So our job is to make sure indeed the money is released and we're authorized to go to court in order to enforce the release of the money if the executive agencies did not do that on their own accord. The only one time have we had to do that was right after the law was passed in the '70s and it was involved in Housing and Urban Development Department. We actually notified Congress we were going to take this action, but before it got to court, HUD released the money, so it didn't really get that far. Since then we haven't really had any issues.

Now we also have responsibility where if we notice and through our work or it comes to our attention through other parties, and this will happen, federal decisions made by Congress and the corporation laws are virtually all public except for certain highly classified areas. So people know that they're to expect some money or the agency's supposed to spend it in various areas. So if it comes to our attention—somebody says, "Hey, this program was supposed to do X and it's not doing X,"—we'll go in and investigate on our own, and then we will issue a special message to the Congress if we think there was an impoundment made that wasn't reported to the Congress.

That's basically our role under that legislation and there'll be periods where there are no special messages to the Congress, there'll be other times that there are messages over time, and there'll be some where we've identified things that should have been reported to the Congress that weren't. We also have responsibility from our earlier role to make sure the agencies don't spend more than they're supposed to by the Congress, and that's called an anti-deficiency violation. And Congress asked us in recent times to keep a section on our website of all antideficiency violations, which we do do.

Kevin Kosar:

That's terrific.

GAO's duties continue to expand. I recall in the mid- to late-1990s, when Congress passed the Congressional Review Act, which is a vehicle by which Congress can strike down regulations, GAO was given additional reporting requirements related to regulations. But then 2004, GAO got its then new name, no longer was it the General Accounting Office, and it became the Government Accountability Office. With that, what other duties were added on?

Gene Dodaro:

Actually the name change, Kevin, was done to catch up with the past. As you've mentioned, a lot happened between 1921 and 2004. Our expansion into program evaluation, our expansion into the Budget Control and Impoundment Act, the Competition In Contracting Act and the bid protest area. And so the General Accounting Office didn't fit us anymore, and it was impediment to recruiting the multidisciplinary task force that we need to do. People would say, "Well why do I want to go work there? I'm not an accountant. I don't want to work for the General Accounting Office." In fact, all but maybe 10% of our people are not accountants right now. And so we changed the name in order to help us with recruiting and also to better explain to new members of Congress and staff that our role was well beyond the accounting functions that were our origins 100 years ago and that we've evolved over time to a very multidisciplinary agency that does work across the federal government on anything the federal government's doing or thinking about doing.

So we have a very wide portfolio. We provide support to over 90% of the standing committees of the Congress, and we have subject area experts in every part of the federal government now, whether it's defense, healthcare, environment, etc. We have then technical specialists, actuary scientists, information technology, cybersecurity specialists, etc. And so we have a very wide range of disciplines. And all our work now mostly is putting together interdisciplinary teams in order to carry out the audits and functions that we do across the government and issue the hundreds of reports that we issue every year and provide expert witnesses to the Congress for committees or whatever. So the name change, and it's really worked. It's really worked. It's made it easier to recruit. We have no problems recruiting high talented people. Most of our people have advanced degrees. We just have a terrific, terrific workforce. In fact, in the last three years in a row now, we've been ranked the top place to work in the federal government for midsized agencies. And that further helps in recruiting.

Kevin Kosar:

Well perhaps reflecting the old dictum, “no good deeded goes unpunished,” in 2018, Congress gave you yet another task to do. It asked you to pick up responsibilities that were similar to those that were once handled by the Office of Technology Assessment, an agency in the legislative branch that was abolished back in 1995. What's this new line of work like?

Gene Dodaro:

Excellent question, Kevin. That was sort of evolving over time.

In the early 2000's, we were asked to do a pilot to see if we could do technology assessments similar to what the Office of Technology Assessment had done. And then I started hiring additional people. In fact, I hired our first chief scientist back in 2008. So we were sort of growing that function for a while because we needed it to carry out our normal responsibilities as well as do these special projects that Congress had asked us to pilot. But as technology has evolved faster than any time in humankind, Congress was really asked to make a decision whether do we recreate the Office of Technology assessment, or do we bolster the capabilities that GAO has been growing over this period of time? And they went with that option.

And so in 2018, it created a special team for Science Technology Assessments and Analytics, we were able to populate that team with many people in GAO were already working on some of these things, but from 2019 to up to 2023, most recently, we've tripled the size of that team in GAO and recruiting a lot more people,...

The topic of this episode is, “What is the Congressional Research Service, and what does it do?”

The guest of this show is me, Kevin Kosar.  I spent a little over a decade at the Congressional Research Service (CRS) working as a non-partisan analyst and as an acting section research manager. Subsequent to my time at the agency, I was one of the individuals who advocated that Congress make CRS reports available to the public and not just legislators. I’ve also written about CRS and the other legislative branch support agencies, like CBO and GAO.

But it would be weird for me to ask myself questions and then answer them, so I asked my AEI colleague, Jaehun Lee, to serve as my interlocutor.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host Kevin Kosar and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

All right, Jaehun, take it away.

Jaehun Lee:

Let's start simple. What is the Congressional Research Service?

Kevin Kosar:

The Congressional Research Service is the rare government agency where its name actually accurately describes what it does. It is a research and reference service for Congress. Congress is its lone client. CRS is an agency in inside the Library of Congress. So it is a federal government agency—not some sort of private sector research outfit—and its job is to support Congress and to do so by providing nonpartisan research, analysis, legal opinions, and just about anything else that Congress may require.

You think about Congress, it's comprised of regular Americans—anybody can run for Congress and anybody can become a congressional staffer. And when those people come to Washington DC, they're suddenly saddled with this immense responsibility of governing: they have to make laws, they have to oversee executive agencies, and they have to respond to lots of constituents. They have to receive interest groups who come through their doors, making demands of them related to policy and spending.

Nobody who enters that position is fully equipped to handle it. We're all amateurs when it comes to governing, and CRS plays a critical role in helping those folks govern. So if you're a brand new legislator and you're trying to figure out, “How do I introduce my first bill? Where do I even get this thing drafted?” You can call up CRS and they'll say, “Okay, here are the steps. Here's how you should reach out to legislative counsel within the chamber who can actually put your ideas into a template and grind it through.” They can help you on these sort of things. They can teach you the basics of legislative procedure: what's a filibuster? How does a congressional budget process work?

They also are a giant resource for facts and nonpartisan—and this is key, nonpartisan—analysis. Everybody in DC in the private sector to one degree or another has an angle, a perspective. Often, especially when you're talking about interest groups or lobbyists, they have specific policy goals and they are going to make arguments to persuade you to pick their policies or to support them. CRS doesn't do that. It doesn't tell Congress, “Here's the policy you should pick.” Instead, it says, “There are your options. All of them have benefits and costs. Here are the benefits. Here are the costs. Now you Congress decide.” That makes them a special resource, and that's why they are so trusted on Capitol Hill because they don't have a skin in the game. They're not pushing an agenda.

What do they do? They run training classes to teach you how to be a legislator or staffer. They'll look up facts and figures for you. They write short reports and primers that explain the history of various policies and programs so you as a legislator can understand why these programs and policies exist and how they have evolved over time. They do so much for Congress.

Jaehun Lee:

How many people work at CRS, and how are they different from staff working in the House and Senate?

Kevin Kosar:

Presently, a little over 600 people work at CRS, so that makes it a sizable think tank and reference service within the library. But I should put that number within context. About 40 years ago—during the 1980s—CRS had over 900 employees. It had a lot more people power than it does today.

How are they different from staff working in the House and the Senate? CRS staff are civil servants, meaning they are hired on nonpartisan objective criteria—the so-called KSAOs: knowledge, skills, abilities and other characteristics. It's a rigorous process with lots of stages where—if you want to get a job at CRS—you have to show you got the education credentials, the research chops, and the various skills that you need to do the job. One of the things that helped get me a job at CRS was the fact that I had spent four or five years reading congressional documents in the course of producing my dissertation, so I was very familiar with the committee processes for doing oversight and policymaking and the larger legislative arena and how it operates.

That's different from Capitol Hill. If you want to work for a member of the House, member of the Senate, one of the committees, you're going to be picked with some consideration of your partisanship. That doesn't happen at CRS. Not at all. Not ever. People who work on Capitol Hill, their jobs are very diverse in nature. You have some people who are just devoted to constituent service, whose job is not really to think about policy. You have people who are devoted to working on press and public communications. You have folks who do a whole lot of different things. CRS is a lot more narrow-banded; you primarily have people with academic expertise-type training and experience. And of course, you have the critical core of the reference librarians, knowledge services folks. That's what comprises the agency.

Jaehun Lee:

Why did Congress create CRS?

Kevin Kosar:

The story starts at least a hundred years ago—around 1914. To a degree, what we had going on was this recognition of an aspiration of the Enlightenment, which had happened centuries before, which is that reason, facts, analyses should come to bear on governance. Now, we all know Congress is comprised of individuals representing diverse districts and states, and they are very much influenced by parochial interests—people back home—and they're influenced and informed very much by interest groups.

CRS was created at a time when there was a broader effort to bring facts, analysis and reason into the legislative process. This got its start in Wisconsin and New York, where the legislatures there got the idea, 'Maybe we should have some experts we can rely upon who can give us the information we need to give us the ability to make smarter decisions and make policy that works better.' To a degree, that—making good policy that works and pleases voters—can help with the eternal goal of a politician getting re-elected. So that's why CRS was created in 1914. It was created as the Legislative Reference Service.

To a degree, it built off infrastructure that had been created back in 1800. I mean, why did we have a Library of Congress? Answer: there was this idea amongst the Founders that it would be good if we looked at some books, studied some facts and figures before we legislate, and so that's why the Library of Congress was created initially. But 1914 was a moment where they said, "We should have people in there who are devoted to producing materials that are useful to legislators—such as compilations of statutes about particular topic (e.g., maybe tariffs or something related to agriculture) and having them on hand—and these people should be available at the beckon call of the legislature as needed. That was the original Legislative Reference Service.

Fast forward to 1946, Congress was in the process of clawing back power. The executive branch had grown massively during the Great Depression, New Deal, and World War II. Congress in the mid-40s said, "We have to reassert ourselves as the First Branch." And they did a whole lot of things, but one of which was they beefed up the Legislative Reference Service and started requiring it to have real policy nerds on staff in particular issue areas. During the early 70s, the ballooning of the executive branch prompted Congress to reassert itself and it took the LRS, turned it into the CRS, and did a whole bunch of other things to reassert itself.

So the CRS we have today was very much created at a time when Congress felt like the executive branch had a whole lot of expertise to draw upon—all the people who work in the many agencies over there—and Congress didn't. Knowledge is power, and—if you're the legislative branch—you don't want to have to rely on the executive branch for all the information. That puts you in a weak position. So Congress invested in itself by bulking up the CRS and flooding its ranks with experts.

Jaehun Lee:

You mentioned during the introduction that there are other legislative branch support agencies. How is CRS like or different from the GAO and the CBO?

Kevin Kosar:

They are alike insofar as they are agencies created to serve Congress. They are staffed with nonpartisan people, who have expertise of one sort or another that is considered of use in the legislative process. GAO was created a century ago and began as an agency that basically followed the money. They were the auditors who were supposed to tabulate where all the dollars being sent out the door by the executive branch went. Later, their mission was expanded to do other stuff. They had to do legal opinions related to the spending of money. They hear bid protests, where if you are a contractor bidding on some government project and think that you got unfairly treated in the course of it, you can file a bid protest and GAO has to look at that. GAO also got involved in doing program evaluation, looking at whether various policies worked, and they have investigative authority, which means they can go into agencies and get their hands on data and other materials.

CBO was created in the early 70s, at that same time when Congress was reasserting itself, pushing back against a president who had thrown so much weight around in terms of budgeting and spending. CBO has a statutory mission to support Congress in various ways. They have to produce various estimates and reports related to federal spending and the economy and the revenues coming in. They also score bills reported from committee—giving them a price tag on the estimated costs and estimated revenues that might be coming in.

CRS meanwhile is a bit different. They do a lot of stuff as I mentioned earlier: running the classes teaching legislators, acting as a daily reference desk, etc. If you have a question about, for example, spending on a particular defense program, you—a congressional staffer or a legislator—are not going to call CBO or the GAO to ask because those agencies are really not designed to take lots of requests from individual legislators and staff. Instead, you call up CRS, because CRS is your help desk.

GAO does it sometimes, but CRS often will let its people work with a committee or member of Congress for an extended period of time. In the old days, they used to physically detail people over to committees. But these days, it's more along the lines of if a committee is really looking into something—like how to help the ailing US Postal Service—that committee can keep asking you questions and asking you to come over and help them, gobble up your bandwidth, and you—the analyst—will just do that. That's neat because it allows Congress when it has various needs to just call upon CRS to flow in.

Jaehun Lee:

What are the challenges facing CRS today?

Kevin Kosar:

One of the challenges CRS faces is an eternal one: the Hill is a very political place and CRS is a very factual, analytical place. And we know in politics facts and analysis can often offend people because it challenges their rhetoric, or a policy or position they have staked out. I've found quotes going back into the 50s, where members of Congress were lamenting the fact that the agency—then the Legislative Reference Service—was hesitant to speak clearly about the facts because they didn't want to face blowback. Mind you, the agency is wholly funded by Congress, so obviously you don't want them to cut your budget. So there's this eternal hesitancy to speak too clearly for fear of getting political blowback.

Another big-picture challenge for the agency is that the 70s—when CRS was relaunched—was a time of very strong congressional committees. Committees dominated the policymaking and oversight process, and CRS was set up initially to primarily serve committees. In the 70s, there used to exist this exercise where—as a new Congress was coming in—CRS was expected to put before Congress a list of the most important policy priorities that Congress should attend to. That just doesn't happen today. So we've evolved to an institution—a Senate, a House, and a Congress collectively that's much less committee driven and much more top-down led by the Speaker and majority leader and their minority counterparts.

And it's a much more partisan, polarized environment. It's a lot more transparent environment. It's a lot more contentious environment.

And so CRS can sometimes end up as collateral damage when party conflict gets intense. They need to find their way between wanting to do the important stuff of serving the committees, but realizing that in many cases committees are not leaning heavily upon them and going to other sources of information. As a result, so much CRS workflow today is driven by individual legislators. That's just a different model than what's conceived in the early 70s. So that's tricky.

I think the digital revolution threw the agency a real curve ball. When I started there in 2003, the internet was still pretty young. Cell phones were still pretty primitive, and the agency at the time couldn't see around the corner—let’s be honest, a lot of people couldn't see around the corner. And they were very anchored on the old way of, “Let's stick with doing white papers and Congress can physically come over and get copies of our white papers, or we can send them there to Congress through interoffice mail.” Then, the digital revolution happens and everything changes. A 30-page white paper doesn't look good on a Blackberry or on a brand new spanking iPhone. So it’s a lot figuring out how to be that nonpartisan reference and research service in the 21st century, adapting to the changing technologies and the expectation of a faster news cycle, faster responsiveness, trying to get by with fewer employees but escalating demands from Congress. It's a lot for the agency to tackle.

Jaehun Lee:

What does the future look like for CRS?

Kevin Kosar:

Certainly, to a degree, it looks like the past. CRS serves a really unique niche. Again, they are the help desk, the trainers, the nonpartisan folks that any congressional staffer can call up and get help from. I can't tell you how many times I've been out on the street or at a party or some parent gathering, and I mentioned that I used to work at CRS and a former staffer who I'm talking to is like, "Oh my God, you did? CRS saved me so many times." What did they mean by that? What they meant was that their boss dropped a policy question or a political question in their lap that they had no clue what the answer was, and they went to CRS and found an expert who was able to bone them up on the basics very quickly so that they could do their job and not get in trouble with their boss.

I don't think that's going to change. Our legislature is always going to be an amateur legislature. There's always going to be questions, and they're always going to need experts that they can trust, people who they know don't have a skin in the game and who are not trying to manipulate them. So that'll stay the same.

What's going to change? Certainly the ongoing internet revolution. Certainly the structure of Congress, whether it continues to be heavily a leadership driven enterprise, whether it continues to be intensely polarized—CRS has to be responsive to that environment. It has to deal with that operating context. What's going to happen with greater technological developments like AI? We're early on in AI and already seeing signs that AI can produce primer type materials, and that prompts the question of, “Is that going to be taken away from CRS analysts?” You might just have AI machines writing short primer reports. Is that the future? Does that mean CRS's mission will shift? I don't know.

I'd also say that as one last factor—that's kind of an unknown—is, “How is the agency going to compete for legislators’ attention and staff attention in the 21st century?” Again, CRS has the great...