Understanding Congress

The topic of this episode is, “Does the Senate still work?”

To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.

So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”

Kevin Kosar:

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

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

Welcome to the program.

Martin Gold:

Thank you for having me, Kevin.

Kevin Kosar:

The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”

Martin Gold:

A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.

But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.

The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.

Kevin Kosar:

I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?

Martin Gold:

I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.

The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.

It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.

Kevin Kosar:

Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?

Martin Gold:

The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.

You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended the Senate rules was in 2013.

Here's another thing to note—and you alluded to this—in the House what the minority thinks about the rules change is irrelevant because the majority will just pass the change it wants to pass. In the Senate, it only takes a majority of senators voting to change the rules. However, there is a special requirement to end debate on the rules change. We're talking about formal amendments to the rules. There's a special requirement that says you've got to have a two-thirds vote to invoke cloture and end debate on the rules change. So what does it mean? It means that if you're going to get an amendment to the rules of the Senate, the majority cannot steamroll the minority. They're going to have consensus with the minority. The last time we had a rules change in the Senate, I think the vote was something like 86 to nine for the rules change.

So what does it mean? What’s it show? It shows that when Senator Reid was then the majority leader sought the change, he had to negotiate the change with the minority and gain consensus from the minority leadership. If they did not have consensus from the minority leadership, the vote wouldn’t have been 86 to nine. There would have been a substantial amount of dissent, so much so that I doubt seriously they could have ended debate on the change. So not only do the rules continue over in the Senate, but because of minority rights that exist in the Senate in ways that do not exist in the House, the minority has something to say about the content of the rules change.

Kevin Kosar:

Just to go a little bit further for our listeners on this issue of rules and how a chamber operates, if the Senate doesn’t frequently change its rules, does it change other things about how it operates? You have a switch in party control of the Senate, going from McConnell to Schumer. Do they have written agreements between the parties about how committee resources will be divvied up, for how other things will be done? How do they coordinate?

Martin Gold:

They have organizing resolutions at the beginning of the Congress. How many members are going to serve on what committees? What’s the ratio of minority to majority membership on the committee? What about the resources of the committee? We just had a situation in the last Congress that was quite uncommon with the 50-50 Senate where committee resources were divided absolutely evenly. It’s normally a two-thirds versus one-third division on staff that can be, for example, determined to be partisan staff as opposed to a purely administrative staff, things of that sort. So they have a negotiation that gives you an agreement on organizing resolutions and when those ratios are agreed to and then the members are assigned, that’s all part of a big negotiation. So that is a normal thing. It happens every two years.

But I thought, Kevin, that you might be going someplace else with that question. So if you’ll permit me to answer the question you didn’t ask, we’ve talked here about formal amendments to the standing rules, yet procedures do change and they’re not always changing by formal amendments to the standing rules. So if you think about it this way, the Constitution gives the Senate, like the House, the power of self-governance. How do you manifest that power? Well, the rules of the chamber are one manifestation of that power. You set up rules to govern yourself. Unanimous consent agreements, which they enter into all the time in the Senate, are another manifestation of that rulemaking power. Expedited procedure laws like the Congressional Budget Act provide a process for considering budget resolutions and budget reconciliation bills. Those expedited procedure laws are another example of the rulemaking power. And a fourth example, and quite important, is precedent, the precedents of the chamber.

Now, precedents most often interpret language in the rules—they give texture to that language. However, precedents will sometimes outright contradict the rules. And some will say, "Well, how can a precedent contradict a rule?" Because the precedent, like the rule, is an exercise of the rule-making power. Those exercises stand on equal footing. The latest exercise in time is the one that prevails. For example, Senate Rule 22 says that to end debate to a normal cloture motion, not on a rules change, but a normal cloture motion on a nomination takes 60 votes. But because of precedents that were set for every nominee except for the Supreme Court in 2013 and in 2017 on the Supreme Court, it only takes a majority of senators voting not 60. The rule still says 60; the precedent contradicts the rule. The rule was never amended formally, but the precedent is what governs because the precedent of 2013 or 2017 is later in time than the rule of 1975.

So when we talk about how the Senate governs itself, the examples of those precedents were not an example like the one I gave of bicameral negotiation and agreement. They were examples of the majority party at that moment pressing down—or maybe you could say, oppressing—the minority of the moment. So in the first case in 2013, it was done by the Democratic majority, and in 2017 it was done by the Republican majority. So you’re in this kind of rough position. You have a set of rules that people can and should be expected to live by, but it is also correct that there is not a rule that you can write that will withstand the will of a willful majority to write a precedent that could contradict that rule.

Therefore, we come to the great unwritten rule, which is the rule of self-restraint. Any majority has the power to contradict anything, past rules, precedents, anything. But whether they can do it and whether they should do it are two separate questions, and the great question for Senate governance now and I think going forward is the degree to which self-restraint will triumph over the temptation to rearrange the rules to serve your immediate political purposes.

Kevin Kosar:

That very nicely sets up my next question, which really speaks to the issue of the episode in a straightforward way, which is, the Senate has various constitutional responsibilities such as considering treaties and nominations and a whole lot more. How well is the Senate performing these responsibilities today? Is it doing better or worse than it did when you first worked in the Senate?

Martin Gold:

When I first worked in the Senate—now, we’re going back over 50 years because I started working there in 1972 for a five-term senator from Oregon, Mark Hatfield—the Senate of those days was a four-party Senate, even though you only had two parties. But it was a four-party Senate with—if I can use the terminology of those days—liberal Republicans, conservative Republicans, liberal Democrats, and conservative Democrats. There were many fewer examples of party-line voting. Instead, you had cross-party coalitions that often formed and were sometimes moved around and so forth. As people executed their constitutional responsibilities, you didn’t have the polarization. You had, I think, because of the absence of that polarization, a greater degree of self-restraint. You didn’t have the tribal atmosphere driving people to creative procedural solutions that would serve political ends. That was the Senate that I knew when I first started.

This Senate is very much a two-party Senate, not a four-party Senate. You do have people on, let's say the left end of the Republican caucus and you have people on the right end of the Democratic, but nevertheless, there is a fundamental homogeneity in both caucuses. So the Senate, obviously, is not going function exactly as it did. You're going to have more party line voting than you had. You're going to have a greater degree of aggressiveness both in the exercise of minority rights and also in majority rights. Just to give you an example, cloture motions used to be very uncommon. Maybe they’d be a dozen in a year, something like that. Now there are 20 times that in a Congress. You now have hundreds of cloture votes in a Congress.

If you don’t have unanimous consent to move something, which is almost inevitable, it’s going to require cloture, 60 votes in order to move something. So you not only see the 60-vote threshold imposed on cloture votes, you see it imposed on unanimous consent agreements, for example, that say, “Well, we won’t make you run through the cloture process, but we will make you adhere to the cloture threshold. If that amendment is going to pass, it’s going to need 60 votes. If that bill is going to pass, it’s going to need 60 votes.”

Cooperation in the modern Senate often takes that form. “We’ll let you avoid the cumbersome cloture process”—and it is a cumbersome process—“We’ll avoid the cumbersome cloture process and allow you to move things more rapidly, but...

The topic of this episode is, “Why is congressional oversight important, and how can it be done well?”

To help us tackle this subject we have Elise Bean. She is the Director of the Washington Office of Wayne State University’s Levin Center. Elise spent 30 years in Congress working as an investigator for Sen. Carl Levin (D-MI) and for the Senate Permanent Subcommittee on Investigations. Elise handled investigations, hearings, and legislation on matters involving money laundering, offshore tax abuse, corruption, shell companies, and corporate misconduct. She is also the author of the book, Financial Exposure: Carl Levin's Senate Investigations into Finance and Tax Abuse (Palgrave Macmillan, 2018). So who better to have on the show to discuss the topic, “Why is congressional oversight important, and how can it be done well?” 

Kevin Kosar:

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

Welcome to the program.

Elise Bean:

Thank you for inviting me, Kevin.

Kevin Kosar:

All right, let's begin with something very fundamental. What is Congressional oversight, and who in Congress can do it?

Elise Bean:

Well, Congressional oversight is when members of Congress, on a committee or individually, ask questions and try to find out: What are the facts? Is a program working? Is there really an abuse? If you want good government, you need good oversight because things change over time and what worked at one time doesn't work at another. That's what Congressional oversight is.

Kevin Kosar:

Yeah, we should dig into that a little bit. I think often Americans don't like to see politicians fighting amongst themselves, yet the legislative branch, last time I checked the Constitution, says that Congress makes the laws, Congress decides where the money is to be spent, but they're not the ones who actually do the execution of the law. They're not the ones actually spending the money. So does that seem to imply some sort of constitutional obligation to engage in oversight?

Elise Bean:

So the Supreme Court has said that that's exactly true, that if Congress can't do what it's supposed to do under the Constitution, unless it has some facts… I mean, wouldn't it make sense—if you're going to change your program or decide where money's going—that you have informed decision-making based on the facts? In fact, there's a 1946 law that requires all Congressional committees to do oversight within their areas of jurisdiction, and that's because they want you to find out what the facts are before you start to pass laws, give out money, and approve nominations.

Kevin Kosar:

Right. And as you hinted at earlier, when Congress says, "Hey, here's a new program we authorized and here's some new money for it, go out and do well, executive branch," sometimes the executive branch doesn't follow Congressional intent. Sometimes a program may not work as it was hoped. So Congressional oversight, we shouldn't just view it as kind of a response to some bad thing reported in the newspaper where Congress has to react, right? Rather, it sounds like it's something that they should be kind of engaged in as a matter of course.

Elise Bean:

Well, there are two kinds of oversight. One is what you were just talking about, routine oversight, where you look at the laws within your jurisdiction, see how they're working—and God knows a lot of times they don't work well—and what can you do to improve them. Other times there's a scandal, there's an earthquake, there's a hurricane, and Congress reacts to that scandal or to that event, tries to find out what's happening, and—maybe—how Congress can help.

Kevin Kosar:

Yeah, I mean, it seems inherent to the concept of representative and responsible government that you've got to have that oversight component there. Otherwise, you get money spent on things that don’t work, and the tap will never be turned off and taxpayers will be aggravated, to say nothing of scandals not being addressed and bad behavior being punished—or at least curbed so it doesn't repeat.

Now, some listeners of this podcast, when they hear the words Congressional oversight, they might flinch, in part because there's a tendency amongst the media to show oversight happening in the form of a hearing with a member of the dais whose face is getting red and they're getting all worked up—it's a political conflict, often a left and right conflict. That stuff happens, but that is certainly not the whole of Congressional oversight. There's bad oversight. There's good oversight. What does good oversight site look like?

Elise Bean:

Well, to me it's when there's a good-faith effort from both parties to try to find the facts. It's a complicated world out there and getting consensus on the facts is sometimes really hard. But when you do it, it creates a foundation for change. And when you think about it, Congressional oversight is all about affecting change. We want to improve laws. We want to address abuses. It's about fixing problems. But Congress isn't the executive branch. They can't prosecute anyone. They can't throw them in jail or fine them. It's all about policy changes. And we're talking about policy changes, good oversight—to me—involves people who have really fundamentally different worldviews. That way, they challenge each other. They look at the facts differently. They look at more facts, and the end result is something that is more thoughtful, more thorough, and certainly more credible if you have both parties involved.

Kevin Kosar:

Yeah, and that brings up the question of oversight and what it looks like. Again, it's forgivable that folks might think, oh, oversight, it's hearings. It's the guys on the dais asking the questions, the witnesses at the table, and that's oversight. But that's just part of a much bigger process. What does that overall process look like? What are the steps of that process?

Elise Bean:

You're absolutely right, Kevin. The hearing is sort of at the end of the process. When you start it, it's first fact-finding. What happened? Get documents, do interviews, maybe go visit some sites, visit victims, and find out what happened to them. That's the fact-finding phase. The second phase is you write it up because if you don't write it up, nobody knows what you ever found out. So that's often a report or a memo or a letter writing up what you found. Then you have the hearing. If it's important enough, you have a public hearing. But then there's a fourth stage which is as important or more important than the rest, which is doing something about the problems that you uncovered. So it's a very long process, four stages. That can take a year. It can even take two years.

Kevin Kosar:

Yeah. Going back to the beginning of the oversight process, how do you pick what to oversee? When I think of Congressional committees and the sheer breadth of their jurisdiction, they often have multiple agencies, and every agency has tons of programs and et cetera, et cetera. Where to begin? How do you choose amongst all these competing priorities for oversight? How do committees do that?

Elise Bean:

Well, that's the most important issue of all because you can't do a lot in a year. I mean, the most you could do is maybe once a month, and then you don't have any time to really investigate. The really best investigations, you usually do two or three a year. And to pick those, what usually happens is the staff makes some suggestions to the chairman of the committee or to the ranking member of the committee, and they decide out of that selection what they're going to do. So you think about, what promises has that member of Congress made to their constituents? What are some of the biggest problems in the subject area they have? Has there been a scandal or has there been some event that really needs to be addressed? And you have to just make some pretty hard choices about what your priorities are.

Kevin Kosar:

I can see that. It would have to be a negotiation amongst a number of competing goods with different criteria thrown into the mix. You mentioned the first stage of once you pick something, getting the facts. And you can do that through interviews and requests for documents. How easy is that, whether it's reaching out to the executive branch or the private sector? In your experience, how responsive do they tend to be when you say, "We want these documents from this file or this person, or we're insisting these guys come over and talk to us, not in a hearing, but just talk to us as staff." How tough is that?

Elise Bean:

It's not easy. I'll just tell you that. It's a very difficult process because you're investigating people quite often that don't want to disclose what they've been up to, and you have to try to approach it from a lot of different ways. You might talk to the victims, you might talk to their competitors, you might talk to law enforcement. Maybe somebody litigated against them, and you can find some files that way. A lot of people resist, and we just have to look at President Trump as probably an extreme example of saying, "I'm going to fight every subpoena. I'm not going to respond to any request for information." Most people don't go that far. Most people do cooperate with Congress because they understand they have an obligation to do so by law and that it's good for all of us for government to work better. But getting documents, getting interviews, it's a tough process.

Kevin Kosar:

I have to ask, I mean, especially with some of the big investigations you were involved in, the ones that were very long, very thorough, how do you manage all this information coming in? And that duty, I presume, falls almost entirely—if not entirely—upon the Congressional committee's staff. The paper, the recordings, the interviews you do—all this is data. How do you manage all that stuff?

Elise Bean:

Well, one thing you do is you get computers. I remember we had one bank that we were investigating. This was Goldman Sachs during the financial crisis. They actually gave us tens of millions of documents, and we actually had to get hard drives and set up an entire computer system just to take in all those documents. We called it “the ocean.” And every day for the next three months, we went swimming in “the ocean.” We had search terms, we had various people we wanted to look at, and we just went through those documents nonstop for three months. After that, we then did three months of interviews because once you identify the documents you want, you think you know what happened, but you don't know what happened. And you have to talk to people who are directly involved, and you just have to take it step by step. To be honest, it isn't rocket science. It's more persistence and just doing the job that needs to be done.

Kevin Kosar:

Yes, I have heard that there is a tactic by those who are being investigated, which is kind of the opposite of stonewalling. Instead, they'll just—

Elise Bean:

Right. Flood the zone.

Kevin Kosar:

Flood the zone with documents and materials. And when I think about the size of some Congressional offices, if they're sending them over in paper format, I could imagine that could be a real challenge.

Elise Bean:

Nobody sends in paper anymore. We used to have paper. I remember when we were investigating Enron, we had 800 boxes of documents, and we had to find rooms just to store them. And then our staff would get out with little dollies, put the box on the dolly, take it back to the office, and go through it. But these days it's almost all online, electronic documents.

Kevin Kosar:

All digital, that no doubt creates its own challenge.

You referenced the term “subpoena,” which I'm sure many if not all of the program's listeners have heard before, and maybe they even know that it's Latin for “under penalty.” Is the subpoena the real big tool for ultimately forcing compliance, whether it's agencies or private sector firms, to Congressional committees' inquiries, or is it just one amongst many tools?

Elise Bean:

It's a very important tool. That's because a lot of times in investigations you want to follow the money. That's the key. To follow the money you need to get bank documents. To get bank documents, they won't give them to you unless you give them a subpoena. But if you give them a subpoena, they'll turn over all of those documents you need to follow the money. To get an interview, you can try to do subpoenas. Sometimes people give you a hard time, you have to go to court. Then it all slows down. So subpoenas are important, but they're far from the only tool.

Kevin Kosar:

What other tools are there? I mean, I would imagine that if somebody was in trouble that maybe they would think, "Huh, I don't really want to talk about this, but maybe the guy who was really doing bad stuff, I can put him under the bus. So that gives me incentive to go in there and talk and have my say, and maybe they'll show me some mercy." But you tell me. What other tools have you got to get what you need?

Elise Bean:

Well, a lot of regulated entities like banks, securities firms, and financial firms, don't want to be seen as resisting Congress. They want to be seen as cooperative. And I think there is almost no case where a financial firm actually took Congress to court and tried to get out of a subpoena. It happens very, very, very rarely. So we had one case where an accounting firm, KPMG was really not turning over any documents, and somebody told the press. It was not us. We think it was somebody within KPMG. We didn't want people to know when they were cooperating or not cooperating. That's not a good message to give out. But somebody went to the press and disclosed that they had not been cooperating with Congress. There were a bunch of articles written about it. And then we heard from people inside KPMG, they had a big meeting with all the managing partners and all the people who were partners in the accounting firm. They got together and said, "We do not like this look. It's not a good look for us." And the very next day they started turning over documents to us.

Kevin Kosar:

Going public and damage to reputation and embarrassment and besmirchment of the name. Interesting, interesting. That makes perfect sense, especially for a private sector firm and one where it might be privately held.

Elise Bean:

And that have regulators. Their regulators don't want to hear that they're not cooperating either.

Kevin Kosar:

Ah, the regulators. Yep. Is there a possibility of bringing pressure to bear through appropriators? Do people who are investigating also happen to have seats on the Appropriations Committee and might be able to use the power of the purse?

Elise Bean:

That's true for federal agencies. They do have appropriations, and that is another tool that you can use. But the appropriations process is very strung out. It's very controversial. We never used that tool. We found it was just too difficult to try to go after somebody on an appropriations basis. And a lot of times because an agency isn't doing well or has problems, if you cut off their money, they just do worse. So that's a theoretical way that you can go about it, but it's not actually used very much, in my experience. But they might want something else. They might want cooperation on a program or something else they need, and you can certainly help them with it or hurt them getting whatever it is they want. So that's another tool.

Kevin Kosar:

We've talked a lot about how and why oversight should happen and what good oversight looks like. So I wonder if—for my closing question—you'd be game for drawing upon one oversight effort you were involved in during your lengthy career that really kind of illustrates how you do it, from snout to tail. How do you do good oversight?

Elise Bean:

Well, we did a lot of really fun things. But let me just choose one that had to do with offshore bank accounts. And this one started because we had two informants. They didn't know each other. But they came into the office about four months apart and told us about banks that had been opening up offshore bank accounts for US clients and hiding the money from the IRS. We ended up having a hearing about both banks. We got names from them of Americans. We looked into what the Americans were doing. We got documents and we had a hearing. At the hearing, one of the banks was UBS. They sent somebody from Switzerland, and he began his testimony by saying, "We want to apologize for our past acts, and we're never going to do it again." We had no idea they were going to say that. We were quite surprised. I think it wasn't really because of our investigation, but because they were also being investigated by the Department of Justice. Soon after the hearing, they had a deferred prosecution agreement. But regardless, they announced the fact, they admitted all of their wrongdoing at our hearing.

Had a very big impact on the offshore world because this was a very big, powerful Swiss bank, and it was sort of a big crack in Swiss secrecy. As a result of that, the House passed some legislation that applied to non-US banks, and essentially it said, non-US bank, if you open up an account for US person and you don't tell us, we're going to impose an excise tax on your earnings in the United States. And since most foreign financial institutions had either treasuries or bonds or stocks here in the US, it was a very credible threat. Somebody...

The topic of this episode is: “What are the job descriptions of representatives and Senators?”

To answer that question, we have Dr. Casey Burgat. He's the director of the Legislative Affairs program at the Graduate School of Political Management at George Washington University. Dr. Burgat also has had stints at the Congressional Research Service, and he worked with me back when I was at the R Street Institute. Recently, he and Professor Charlie Hunt authored the book, Congress Explained: Representation and Lawmaking in the First Branch. Casey has been studying Congress and how it operates for years, which makes him a great person to ask the question, what are the job descriptions of representatives and Senators?

Kevin Kosar:

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

Dr. Casey Burgat, welcome to the program.

Casey Burgat:

Thanks for having me.

Kevin Kosar:

It's not unusual for Americans to grumble about Congress and to complain that these elected officials are not doing their jobs. But last I checked, there're no official job descriptions for the positions of representative and Senator. So in thinking about what these guys are supposed to be doing, I think we should probably start with the US Constitution. It certainly has some clues.

Casey Burgat:

Yes. Always, always start with the Constitution. It takes us back to the Founding. It sets the framework for how we're supposed to think about a lot of these institutional questions. This is one of them.

The Constitution does provide at least some clues, but definitely not as many as we assume are in there—especially in regards to the actual duties of Senators and representatives. It does give eligibility requirements of who can serve: you have to be 25 years old to be in the House, 30 in the Senate, seven years a citizen, etc. But after that, it gets surprisingly and oftentimes frustratingly sparse in terms of what individuals are supposed to do once they're elected. We have to look more broadly and deduce our expectations of job descriptions.

We can take some hints about what the individual members are supposed to do based on what the Constitution says that Congress as an institution—and the individual chambers—are tasked with. So Congress-wide, all legislative powers are granted to Congress. It's right there at the top—Article I, Section 1—no debate about it: Congress is the legislative branch. Then, they itemized what other powers Congress is supposed to have: to declare war, coin money, and—Kevin, I know this is for you—establish post offices, etc. We know that they're supposed to do that. Then each of the chambers has its separate roles: the House deals with revenue legislation, impeachment, etc. The Senate has advice and consent on treaties and nominations, and exclusively conducts the impeachment trials that the House sends them. Because Congress and the individual chambers are constitutionally tasked with these types of duties, if they don't do them, no one else will—at least in theory; in practice, we know it's not always that simple.

So given that the Constitution gives them these duties—both as an institution and as individual chambers—we can at least somewhat deduce that they are part of their constitutional job descriptions. But that's about where the Constitution runs out of the details on exactly what these 535 powerful members are supposed to do every single day. In fact, the vagueness of the Constitution is intentional. The Framers explicitly punt on a lot of these specifics that we often assume they've detailed for the individual members and Congress as an institution.

For example, the Constitution says things like “each House may determine the rules of its proceedings,” so it's left up to the members to decide how to operate and organize. This means they have to decide things like what—if any—committees to have, how to elect leaders (if they will have leaders), and how to process its business through procedures, especially in regards to legislation. Despite us thinking that it's an unbending, unmovable, and slow-operating institution, Congress has changed these things over time to suit the wants and needs of its membership.

But getting back to your original question about the frustration, this ambiguity and letting Congress figure out the details of the job on its own and changing things as they see fit has absolutely contributed to the public’s frustration with Congress. It's not like throwing a job posting up on Indeed of “Senator” and “representative.” It's up to all of us to decide exactly what these powerful people should be doing with their powers and their hours. And when we don't agree, we inevitably get frustration because you can't be everything to everyone at the same time. This is nothing new and has been a constant challenge for members since the beginning.

Kevin Kosar:

Americans also tend to have conflicting feelings about representatives and Senators. On the one hand, they'll say, "You guys just need to get things done." On the other hand they'll say, "Why aren't you deliberating more? Why aren't you bargaining?" And then on another hand, they'll say, "You need to stick to your principles and quit doing all that compromising and horse-trading." The very nature of the body of Congress itself—that it pulls these people from all over the place with different interests, and throws them into a big soup bowl together—seems to create its own theoretical problems with the expectations we should have for members.

Casey Burgat:

Absolutely. We are full of contradictions and it really helps to admit it. Then we can get past the lazy answer of what they're supposed to do—the bumper sticker version of all this stuff—and have conversations about what Congress is supposed to do and what's possible given all those contradictions baked right into the system.

Every few months we'll see a survey of Americans saying the vast majority of us—90% of us—say we want Congress to get something done, find common ground, compromise on things, etc. That's the lazy version. When we get down to the individual incentives of who these people represent, the thing you might want to compromise on is the thing that I deem as a principle that is uncompromisable. And in fact, the minute that my representative compromises on an issue like that, I'm looking for someone else to take the job.

We see this baked into campaign platforms where candidates will say this explicitly. "Send me there to stop them. Send me there to stop President Trump or President Biden.” Then this message is spun as standing up for principles. This just gets to the conflict that we've had since the beginning. We take all of these constituencies—all of these collective action problems—elect some people to be our voice, and say “Good luck.” Then we blame them when we don't feel represented on the one thing that really matters to us. It is just an incredibly hard job that leads to unrealistic expectations, which—in turn—lead to frustration that is easy to capitalize on. It's an impossible job, and I'm sympathetic to the members who have to navigate this every single day.

Kevin Kosar:

You just mentioned something that's important, which is that we have Senators whose job it is to represent whole states, whereas you have representatives who are supposed to represent districts. At the same time, they both come to Washington, DC and they're supposed to address matters of national concern—not merely local or parochial—which is another tension within there.

Let's set that aside and go to another thing that pulls at us when we think about the role of representative and Senator. Your book mentions these classic terms from political science—viewing the job of the legislator as being a delegate versus a trustee. What do you mean by these?

Casey Burgat:

Political scientists have helped us try to create a framework where we can quickly see the frustration with members of Congress as they attempt to impossibly satisfy everyone with every single issue at every single moment. The framing creates two classifications of members. 

The first is a delegate model, where members of Congress should do exactly what their constituents want them to do with no variation. As the representatives of the people, the individuals we gave our vote to should represent the will of their constituents. They're effectively given instructions on how to vote on issues, what to care about, what not to care about, and it's their job as the person in power to go do exactly those things. Then there's this other idea—the trustee model—where members are the professionals who see these issues every single day. They talk about them, they live them, and they have access to much more information. For a ton of issues, there's no possible way that we the people can have an informed viewpoint because we're out there living our lives. We have kids, mortgages, jobs—we don't want to pay attention to politics to this degree, so we elect trustees. We want them to act as our trusted representative and we trust that they will use their best judgment to make decisions on our behalf.

These both sound good, but they are not the same things. One is practical and one is theoretical. There're lots of things that—if we are being honest—we don't know enough about or even care enough about that lawmakers have to vote on. There’s no way that we can give them instructions on all of these issues in a way that is filterable and aggregated up. Even the smallest districts in the country are hundreds of thousands of people. There's not going to be unanimity in what they agree on, let alone unanimity on intensity of how much to care about this. It's the representative's job to represent the will of the people on all things, and try to make these impossible calculations of what to care about, by how much, and then consider the trade-offs that are inherently built into the policymaking process. Again, this leads to frustration with our members, where people think, ‘They're not representing us on this issue at this time in the best way, they're not fighting hard enough, they're compromising too much or not enough.’ It’s impossible to satisfy everyone all the time.

Kevin Kosar:

It occurs to me that one thing that was on display not terribly long ago—when the House was attempting to choose a new Speaker—was the issue of partisanship as implicitly being part of the job, according to some Americans. Namely, you heard people saying like, "The GOP is embarrassing itself. They all should vote unanimously in favor of Kevin McCarthy for Speaker. The fact that they are showing open dissent is a sign of dysfunction. They should do their jobs, pick McCarthy, and move on." Yet at the same time, we often hear the refrain of, "It's always Democrats versus Republicans, and they're always playing politics. Why can't they just focus on the issues instead of partisan identification?" This seems to be another contradiction in our ideas about what these guys are supposed to be doing.

Casey Burgat:

Understanding voter sentiment and what motivates voters to pay attention is a very hard thing to do. It’s hard to get voters to care enough to pay attention healthily and contribute to the conversation, rather than just add volume to it. It’s hard get them to show up to vote—to say nothing of volunteering for a campaign or showing up to local political efforts. It's really hard to get people to pay attention past the sexy cable news topics that're generated for you to pay attention and keep your eyeballs on certain content. Based on what we know about voters, the best way to get most people to pay attention is to appeal to their ideological interests—whether they have them or not—and to lean into their in-group versus out-group tendencies. And this is where it quickly gets very sociological—an “us versus them” mentality.

We send our members to be a part of “us.” If they're representing “the other” too much, then—all of a sudden—we need to look for someone more like “us.” That cycle warps these incentive structures when you think about what the institution is supposed to be and the type of products that it can reasonably produce. So there's definitely a partisan expectation for a lot of voters for their representatives to get to DC and represent those interests. Candidates are part of the problem, too, because they lean into this. They say, "I’m going there to represent your interests. I am explicitly not going to be a compromiser or give up on my principles." That has downstream effects on what's possible in an institution and what the institution decides to focus on. Instead of legislating when you can't reasonably get compromise—because that will cost you your job—you do what else you can do. You provide oversight, investigate, use your resources to paint the other side as corrupt or unpatriotic or incompetent as a means to get more of your leaning in-partisans effectuated and more of your partisans elected to office. There're these contributing factors that just create a doom loop of partisanship because we expect our members to be partisan. They told us they would be.

Kevin Kosar:

You used the word “sociological,” which brings up one more thing: voters frequently judge their representatives and Senators based upon these kind of group identifications. You will have a Senator who will style himself as the person who is speaking for the forgotten blue collar American. You will have legislators who come to Congress and say, "I was sent here by African Americans and I am a member of that community, so my job is to look after their interests first." It seems there's this whole pluralistic aspect that gets poured into this job description. 

Casey Burgat:

A hundred percent. Let’s limit the universe to three issues for the sake of this example. We have issue representation where we say, "Okay, there're these three issues. I need a lawmaker to represent what I believe on these three issues." That's one version of representation. There's also demographic representation, where it matters that the people elected to the halls of Congress look and talk like us, come from where we come from, experience our same experiences, etc. There's something to be gained by having demographic representation—independent of issue representation—whether it's gender or religion or race or ethnicity. It's really hard to have full faith in an institution that only looks like one segment of the population.

All of this stuff matters to create an institution that we can look at, see ourselves in, and know that if we're not paying attention on each and every issue, we at least know that the people who are can relate to us. So when you only have rich white dudes in there debating topics and issue areas that rich white dudes fundamentally can't know, it contributes to our frustration. Think of abortion rights or single-mom issues, public education, healthcare, daycare, etc.—it really matters independently of how you come down on these issues. You can be represented perfectly on all the issues, but if they don't look like you, think like you, act like you, talk like you, come from where you come from, you’ll still have questions about their effectiveness as a representative body.

Kevin Kosar:

And you mentioned that there's kind of issue representation versus group or identity representation, and those often overlap. We often see members of Congress who will be accused of not being truly Black, or, being told "You're a woman. The right to an abortion is a woman's healthcare right—a human right. But you as a woman are against it, so you are basically acting like an old white dude and you are not representative of we women." The issue content gets poured into the identity content too.

Casey Burgat:

It’s another sign that you can never be enough of whatever it is you're trying to be to satisfy everyone, which may be—depending on where they stand—too much for other people. For instance, you care too much about women's issues, or you care too much about the wealthy. For most people, this will break down pretty cleanly on ideological grounds. Even then, it gets complicated by these identity factors where, for some people, you're not enough, and for the other side of the aisle, you're too much. So there's no great line to be, and you're automatically screwed from the get-go.

Kevin Kosar:

And looping back to the matters of districts and states and the sort of interests...

The topic of this episode is: "What is the congressional debt limit?"

To answer that question we are once again speaking with Philip Wallach. He was the very first guest on this podcast, where we pondered why we need a Congress. Phil is a senior fellow at the American Enterprise Institute, and the author of the book, Why Congress, which was published by Oxford University Press in 2023. Phil also has written previously about the debt limit, which makes him the right person to ask: What is the congressional debt limit?

Kevin Kosar:

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

Phil, welcome back to the program.

Phil Wallach:

Thanks for having me back.

Kevin Kosar:

Let's start by getting clear on what we're talking about. There are deficits and there is debt. How do these two things differ?

Phil Wallach:

It's a stocks versus flow kind of thing. Each year, we have spending and revenue—in almost all years in recent memory, we have more spending than revenue. That creates a deficit. So the accumulation of all of the past deficits is the debt. So the debt is our total of all the spending we've done minus the revenue we've taken in, and it is now officially north of $30 trillion.

Kevin Kosar:

So when the Treasury needs to issue more debt, it's got to sell bonds—basically, these IOUs that say, "Please give us money that we can spend now, and we'll pay you back later." Is that essentially what's happening when we're taking on more debt?

Phil Wallach:

Yeah. A bond is a legally obligating instrument, and debt put out by the United States government is considered the lowest-risk kind of debt instrument in the world. So the government is not just saying, "If we feel in a good mood, we'll pay you back,” but, “we are legally obligated to pay you back with interest." That's very valuable to investors. And of course, United States bonds form the gold standard of collateral used not only in this country but around the world in the global financial system.

Kevin Kosar:

So this leads us to an important point, which is that an executive agency called the US Treasury that is issuing debt, but it doesn't do it simply at the behest of the President. The President can't say, "Well, let's just issue as much debt as we want on this day of the week or during this year." We have a law that limits the amount of debt; that is, our legislature has a role here.

We keep finding ourselves—with some frequency—in a situation where Congress will run these yearly deficits where they're spending more than the revenue coming in, and the debt grows and grows. Then, when we hit this legally mandated limit, Congress has to vote to pass a new law so that the limit is set higher so that more debt can be issued.

So let's just turn back the clock. This practice of setting a debt limit by law: why do we have it, and when did Congress first start doing it?

Phil Wallach:

Okay, so go back to the Constitution. Article I, Section 8 lists Congress's powers and pretty clearly gives the power of the purse to Congress. So Congress is responsible for making decisions about spending and taxation, and it's also, therefore, responsible for making decisions about financing deficits.  

Through the 19th and early 20th centuries, whenever the Treasury wanted to sell debt, Congress would specifically vote to approve every single bond issue. Now, it didn't really think very hard about the way it did that; the Treasury Secretary pretty much came over and said, "This is what we'd like," and Congress generally said, "Okay, that sounds all right with us." But it was approving every single bond issue. 

Now we come to World War I, and the federal government was spending money like never before, and Congress started to feel like this was too much of a burden for it to have to approve every single bond issue. So instead, in 1917, it put in place a ceiling, a limit. So up to this amount, Treasury can issue bonds as it sees necessary, and then once it hits that amount, it's going to have to come back to Congress. Congress will have to raise the ceiling, and the process involves the legislature again. But they put in place a dollar limit, and periodically raised that.

Somewhere around World War II, it took a modern statutory form. And ever since then, Congress has been raising the debt limit periodically, because we keep accumulating more debt such that if we didn't raise the limit, the Treasury would find itself unable to service the debt (i.e., unable to meet all of the obligations that Congress has incurred).

Kevin Kosar:

Is the United States unusual in having this debt ceiling policy where the legislature has to enact an increase to the debt periodically?

Phil Wallach:

Yes. It's not a normal thing for countries to have. In most countries, debt issuance seems to be thought of as a ministerial function of the Treasury Department, and not something that the legislature involves itself in so much. This is another aspect of America having an unusually powerful legislature that gets involved in more activities than legislatures in most countries do. But it is fairly clearly rooted in the Constitution that the US Congress has to be involved.

Now, it could just raise the limit really high. It could put in some sort of default rule that as long as we've passed spending laws, we're automatically authorizing the Treasury to sell enough debt such that we can spend all that money that we have voted in approval of. But we've never done that yet, so the debt limit has been the way we've coped with this congressional involvement for the last century.

Kevin Kosar:

It's worth pausing here to point out that the function of spending seems to have three big legislative steps. Congress passes a law to authorize spending on a program, an agency, etc. Then, Congress passes another law to appropriate the actual dollars that the executive agency can spend. But if the aggregate amount of those dollars exceeds the amount of revenues, you're going to have to take the next step to borrow. And in the olden days, as you referenced—a hundred years ago and earlier—Congress would just regularly pass these things ad hoc.  

But that became such a frequent thing, it probably made very little sense to spend that much time on the floor of both chambers pushing those bills through. So they just set a higher number and put it there. That still is a third step. So instead of doing this third step every few weeks or every few months, every year or so we have to go through this debt limit situation.

Phil Wallach:

And it's not always so newsworthy, because sometimes neither party is all that interested in fighting over it—Congress puts through a raise of the limit in a bipartisan manner, and life goes on as before. So it doesn't have to be a moment of drama.  

But ever since the standoff in 2011 especially, there's been a lot of attention to the debt limit, and a lot of sense that this is just a fight waiting to happen every time we come up against it.

Kevin Kosar:

We often hear the demand by some elected officials—presidents, members of Congress, etc.—that they want to "clean debt limit increase". What do they mean? And are these "clean increases" the norm?  

Phil Wallach:

So a clean increase would be if legislators introduced a bill that was very short and very simple, and all it did was raise the amount of money that the debt limit is set at. Or something they've resorted to in recent years is: instead of choosing an amount, a dollar amount, they suspend the limit until a certain date. And that's a different way of getting at the same thing of saying, “We're going to be able to issue the debt we need through this time period instead of up to this amount.” And so Congress has sometimes passed bills that are more or less “clean increases.” 

I wouldn't say that's the norm, though. Most of the time, whoever is not in the White House uses debt limit raises as a chance to hold the White House's feet to the fire a little bit on spending that they don't like, or on debt accumulation generically. If you go back to 2006, for example, the Democrats gave the George W. Bush administration a bit of a hard time on raising the debt limit then. It wasn't a big fight, in the end; the Republicans and Democrats got together and passed it in the end. But for example, Senators Joe Biden and Barack Obama, both voted against that increase as a way of showing that they were unhappy about some of the spending that the Bush administration had put through.  

So historically, going back many decades, the party out of the White House has used it as a way of raising some protests. Some perennial fiscal hawks have used it as a chance to raise alarms about the growing debt in America, so usually, there's some kind of provision that needs to be attached to show, ‘we're concerned about the debt’ along with raising the debt limit. That's the norm, I'd say.

Kevin Kosar:

I think it's worth pulling back here for a sec and noting to listeners that when a bill is brought up for a vote in Congress, that bill is frequently comprised of multiple pieces of legislation that have been bargained out. They're put together as a package deal to build a majority. And other instances, a bill may be brought to the floor, but there's a shared understanding that other bills are also going to come hot on its heels, and they're going to pass. So they're not formally packaged together, but they're understood to be put together. And that's how you build the majority. So you can have a clean debt increase in theory, but you could also have another bill that's going to be coming in right behind it that is a product of bargaining with whoever is demanding a side deal of some sort.

Having said that, are these debt increase standoffs a bad thing? Is it bad for the legislators to bargain over this topic, seeing as debt and fiscal responsibility are important issues?

Phil Wallach:

It is a really strange way of trying to get control over our fiscal trajectory. It seems like the spending and revenue decisions that we make are the things that actually set the course of the debt. And then coming on the back end and arguing over whether we should raise the debt limit is kind of a strange way to say "that's how we should change the trajectory" because, in some sense, we all know that we have to raise the limit. We're not going to let the country default on its debt. And so it's a strange bargaining game where everyone knows that the outcome is preordained, at least in that aspect of it.

So the counterpoint, the reason why I would say a lot of fiscal conservatives say "We need to fight over the debt limit today and in the future" is that it's pretty much the only gut check we have in the system right now. We have the annual appropriations process, but that only gets at about a third of federal spending. A lot of federal spending is on autopilot at this point. Our budget process, which is supposed to force us to take stock of where we're going on an annual basis is—pretty much by all accounts—broken. It does not serve that sort of big-picture function, whatever else it may do. And so the moments when we bump up against the debt limit and we all know we have to raise it, they create the time when we could all get together and think about what's happening with the United States’ accumulation of debt, and what we need to do to change the path we're on.

Certainly, a lot of Republican legislators are very distressed about the fiscal path that we're on and want to do something about it. But again, it's a strange negotiation to have where, at the end of the day, everyone knows we have to raise the limit.

Kevin Kosar:

That's clear. Our current spending and revenue-raising practices are what are creating the deficits, and the compilation of deficits is what creates debt and brings up the debt limit as an issue. And so it seems sensible that we should just deal with that other problem.

But of course, the issue is we have this 50-plus-year-old Congressional Budget Act, about which everybody agrees that Congress is just not following the act. Reality and what the provisions of the laws say are just far apart. The incentive structure is all screwed up, so nobody's following it.  

But to replace it is a huge lift. You have to get a law through both chambers. It means a lot of people's oxes are going to be gored. You've got appropriators, they don't want to give up their power. You've got Congressional Budget Committees. There are just a lot of players that you'd have to get. So the debt limit, to some degree, is like a proxy for that. And it's easy because it's a straight vote. It’s a single piece of legislation and you can take a symbolic stand on either side of it that might align with party branding or something like that. Is this dynamic, in some way, similar to the whole periodic fights we have over shutting the government down?

Phil Wallach:

Well, I think you hit on it when you said this is an opportunity to make a symbolic statement. I think that's, in a sense, the problem with the way that we do things now, which is that we have these fights around this largely symbolic matter and we don't actually force ourselves to get to the substance in any searching way. I think it's so much easier to let things go on the way they are going than to figure out a way to reduce deficits and debt. It's just so much less resistance.

And we don't have an imminent fiscal crisis in the sense that we're not drowning in our interest payments right now. I think the inflation of recent years actually makes the problem a little less acute, but we don't have any incentive to buckle down and fix things. And these problems get worse year by year when we think about where we'll be in about a decade when we've run into some very big problems with funding Social Security and Medicare under the current arrangements. And we're going to have a whole lot more debt by then because—these days—we run these roughly trillion-dollar deficits every year. It's an ugly picture, and we need to find some way of getting at the substance of it. 

And the folks who are enthusiastic about debt ceiling fights think that the debt ceiling is the tool that we can use to get at that substance. I'm just a bit skeptical. I think the track record over the past few decades when people have zealously pursued some of these debt ceiling fights is not good. We haven't stopped accumulating debt. We haven't gotten to the substance in any really meaningful way. That's what worries me.

Kevin Kosar:

Should we just give up on these big battles around the debt limit and just either repeal the need to have one, or just set it at a gazillion dollars? Or is there something else we should do?

Phil Wallach:

Gazillion is not a real number, Kevin, and so that might be legally problematic.

I'm inclined to think that we should work hard to take the debt limit off the table, but—in the process of doing so—put in some other mechanism that really forces us to reckon with the debt and to debate the debt in a meaningful way on an annual basis. But it's not entirely clear what that mechanism would be, and revamping the whole budget process, as you alluded to earlier, is a really big lift.

But I think we need to squarely confront the fact that the current system is broken. The current system includes this debt ceiling element that really doesn't fix everything, causes real distractions, and of course causes this risk that maybe we might default on our debt, which would be really perverse. So to my mind, we need to push for some better way of handling our fiscal processes. We do need to recognize that things are broken now and that we're on a bad trajectory. Just having more debt ceiling fights doesn't really seem like a way of getting to a better place.

Kevin Kosar:

Philip Wallach—author of the book, Why Congress—thank you for explaining to us the Congressional debt limit.

Jeff Pickering:

Hello, this is Jeff Pickering, Director of Academic Programs here at AEI, and host of the Campus Exchange podcast. I want to take a moment to tell you about AEI's 2023 Summer Honors Program. This annual program is a unique, all-expenses-paid experience for undergraduates to study the pressing issues of our day with AEI scholars and other policy experts. This program will bring a couple hundred undergraduates from campuses across the nation and the world for weeklong seminars taught throughout the month of June.

Some of the courses we're offering this June will cover “The Changing Nature of Warfare,” taught by AEI's Kori Schake; “Polarization and Pluralism” with David French of The New York Times; and “The Foundations of Democratic Capitalism” with AEI's Michael Strain. In addition to time in the seminars, students will also have opportunities to connect and network with other students, young professionals, and other experts across the political and policy spectrum.

If you are a current college student or someone who may be interested, head on over to aei.org or Google "AEI Summer Honors" to learn more and apply. Applications are due March 15.

Kevin Kosar:

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

The topic of this episode is, “What do congressional committees do?”

My guest is Dr. Maya Kornberg. She is a political scientist in the Elections and Government Program at the Brennan Center. Dr. Kornberg leads the center’s work related to information and disinformation in politics, Congress, and money in politics. Maya also is the author of Inside Congressional Committees: Function and Dysfunction in the Legislative Process (Columbia University Press, 2023.) All of that makes her the perfect person to answer the question, “What do congressional committees do?”

Kevin Kosar:

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

Dr. Kornberg, welcome to the podcast.

Maya Kornberg:

Thank you so much for having me. I’m excited to be here.

Kevin Kosar:

Since its earliest days—more than two centuries ago—each chamber of Congress has had committees and used them for lawmaking, oversight, etc. Why committees?

Maya Kornberg:

As you noted, committees have been essential institutions in Congress since its inception. One of the reasons for this is that Congress is a big organization with an enormous number of issues to handle. So committees act as sub-organizations that can help Congress perform specific duties. Congress delegates work through its committees, so they also serve as indicators of how Congress is apportioning responsibility and resources. And in terms of power within the chambers, committees help to decentralize power, and encourage and give space to more legislators from both parties to be active participants in the policymaking process.

Kevin Kosar:

You note in the book that committees have four core functions: deliberation, education, theater, and personal connection. What do you mean by these terms?

Maya Kornberg:

These are the core functions that legislative scholars have identified as key roles of committees in legislatures, generally.

First and foremost, scholars identify committees as a deliberative forum within Congress. Woodrow Wilson once wrote that “The House both deliberates and legislates in small sections. It delegates its legislative and deliberative functions to stand in committees.” And what does deliberation mean? As you and your co-authors touch on in Congress Overwhelmed, deliberation is really about weighing the different aspects of a question and reasoning through the different causes and consequences. This is a crucial part of any policy formulation, and something that committees handle in Congress.

Traditionally, committees are where research is brought in and technical learning takes place, and that’s what I mean by education. Congress is a body in which many lawmakers have to legislate on specialized topics that they don’t have any training in. Committees give them the space to learn—they are a place where lawmakers gather information and educate themselves about specific policy areas.  

Committees are also one of the major bipartisan institutions in an increasingly partisan Congress, so they form a space for members of Congress to cultivate personal relationships with each other and with the witnesses. Members from both parties come together on a regular basis in committees for hearings and other regular work. And this forms a space then for potential personal connection between members.  

In my book, I tell the story of a particularly notable friendship that came from a committee, and that is the friendship between longtime senator, Dick Lugar, whom I interviewed before he passed away in 2019, and then-senator, Barack Obama. Republican Senator Lugar told me that Barack Obama was frequently one of the only members left in the committee when Senator Lugar was chairing, and would sit there and ask questions and be engaged. Also as a result of their joint membership in the committee, they went on several trips together—what’s known as CODELs, or congressional delegations—and were really able to maintain a friendship and fruitful working relationship across party lines for many years after, that originated in their joint membership in the Senate Foreign Relations Committee. So that’s what I mean by personal connection.

Finally, committees can act as what Woodrow Wilson terms “the theater of debate upon legislation.” One of the staffers that I interviewed in the book explains that sometimes the purpose of a hearing is to give a public forum to discussions that largely happen behind closed doors. This public function of committees allows members to publicize issues. It’s really a public-facing function and it can help them to mobilize support for different policy issues that they might be working on.

So these four functions—deliberation, education, personal connection, and theater—are core universal functions of committees. And my book then explores under what conditions each of these functions might be most likely in Congress today.  

Kevin Kosar:

Since you’ve teed up the question nicely, are the committees of today still doing all four of these things: deliberating, education, theater, personal connection? Does it vary? Does the mix—the kind of cocktail of these four functions—change from committee to committee?

Maya Kornberg:

As I note in the book, there’re certain parameters that lead a hearing or a committee to be more likely to fulfill different functions. Today, after a series of developments over the past several decades, committees are—by and large—less autonomous, less specialized, and less deliberative than they once were as a result of decades of having staff cut and having their power taken away and usurped by party leadership.

Still, committees can serve these functions. I note in the book that, in particular, the educational platform of committees can be most likely—and this might seem counterintuitive—the further away you are from a vote or from talking about a specific piece of legislation. I spoke to members who explained that the closer you are to a vote, the more likely you are to descend into partisan tribal warfare.

But in terms of what I call agenda-setting and general education about topics—this is really important because these members of Congress still need to be legislating about all of these very specialized topics—committees can still serve this general education function. I tell the story in the book, for example, of the genetic engineering hearing in 2015, which was at the very beginning of genetic engineering science and development of that science in the United States. Members talked about this hearing as one in which—at the very beginning—this policy issue becoming something that they would need to regulate, fund, and legislate about. They were able to learn about this because it had not yet been colored by partisanship in the way that many issues are. 

I also note in the book that personal connection can still occur, but under specific circumstances. As we know, Congress is becoming increasingly partisan. Frequently, the only time that members have to connect with each other is within the rancorous halls of Congress because many of them don’t live in Washington; whereas before the mid-90s, they did and they had plenty of opportunities to form personal connections. One of the things I talk about in the book are opportunities like field hearings, like congressional delegation trips that committees facilitate that allow members to socialize with each other and form personal connections outside of Congress.

So again, these kinds of hearings and committee work might allow for more personal connection than we see in traditional scripted and partisan hearings within the halls of Congress. Similarly, the committee hearings that we see in Congress with all the cameras all teed up might actually be the place for more theater. But when they’re out on the road—with for example, the Agriculture Committee’s Farm Bill Listening Tour, listening to farmers—there might be more space for actual interaction and less theater.

So, again, in the book, I explore when each of these is most likely, arguing that they all take place in Congress, but we can learn from when they take place in order to think through what reforms can help facilitate more of these different functions in Congress today.

Kevin Kosar:

Yes, and a point you make very clearly in the book is that hearings have different purposes. Sometimes, it is just exploring an issue that they’re digging in and the hearing is probably going to be rather drab. So that’s lots of experts coming in and presenting data on this, that, and the other. In other instances, the point is to call attention to something—to get the media’s attention, to say, “Hey, here’s a thing that everybody should be asking questions about,” and perhaps wagging fingers and shame. So what you get is going to depend on what the ultimate outcomes are.

Now, you mentioned personal connection, and this was a really fascinating part of the book. With personal connection comes trust. And ultimately, for legislature to work—to be able to build a majority, to be able to create a piece of legislation—there’s got to be some trust between individuals so that they can collaborate, create a shared work project, move it through the chamber, and deal with the resistance that’s inevitably going to come—whether it’s media criticism or criticism with their own party or the other party. You talked firsthand with people who work on committees. It seems to me that the personal connections are like the secret sauce for making it work. Did I get that right?

Maya Kornberg:

Yeah. I talk a lot in the book about the crucial importance of the relationship, specifically between committee leadership and between their respective staffs—the minority and the majority staff—in crafting hearings. In my interviews with staff and with members, it became very clear to me that there are the formal rules, but there’re also the informal norms that—in many cases—trump formal rules because of the importance of personal relationships. So when the minority and the majority staff have a good relationship—and when the topic of the hearing is perhaps more bipartisan—then there is space to even create joint witness lists and to think together about creating a witness panel that exposes the different aspects of an issue and the different voices that there are to hear from on an issue. On the other hand, in the absence of good personal relationships, the minority gets the minimal notice that the hearing is happening and their one witness—which the minority is always entitled to.

And I also show, by looking at what I call “balance scores,” that hearings in which the ranking member and the chair are closer to each other ideologically—I use DW-NOMINATE scores to look at that—might yield more balanced hearings. And I create this methodology for creating balanced scores in the book, which are a way of measuring how balanced a witness panel is (how many witnesses are speaking for or against a certain topic). So really, the chair and the ranking member—both their ideological positioning but also their relationship and the relationship between their staffs—can be critical in either creating a space where there will be a balanced witness panel with many different perspectives, or a witness panel in which there is really just one minority witness there to promote the messaging of the minority party, and the rest of the witness panel is there in order to promote the messaging of the majority party.

These are the hearings that we frequently think about when we think about Congress because that’s what we see on television, but that’s not all hearings. There are many hearings in which there are joint lists, there is a real space for deliberation, and reasoning through the many aspects of the issue, but that is more likely when there is a joint approach, a joint list. And relationships are really critical in order to be having those discussions and coming together as a committee to create a hearing, to create a witness panel, and to set up the building blocks for a real deliberative conversation that can happen in committees. That is more likely when the committee comes together in that way.

Another thing that I found really interesting was one of the committees that I spoke to—in which the minority and the majority had a good relationship—would approach the Congressional Research Service with a joint question before each hearing and ask for a joint report from the CRS that they could send to all the members and the staff to prime them with the same neutral information before the hearing. Things like that really set the tone for the hearing to come and create the space for real reasoning through the different aspects and real openness to alternatives.

Kevin Kosar:

Over the past century, the power of committees has risen and it’s fallen. Today, committees are not quite the powerhouses they were 50 years ago. In simplest terms, how is it that committees’ power can grow or shrink?  

Maya Kornberg:

That’s a really interesting question and I think that a number of factors shape the relative power of committees.

In legislatures, in general, parties and committees tend to act as competing organizing structures. Historically, as well as internationally, we see that the power of the two is inversely correlated. Committees tend to be weaker during periods where power is concentrated in parties and party leadership, and vice versa. And this is really the story that we’ve seen unfold over the last several decades in Congress. Party leaders and parties have usurped control and committees have lost power.

I’d highlight a few key events in that. And I think the story begins in the 1970s. It begins, of course, earlier on, but in terms of the loss of committee power the 1970s saw some key events. There was the Legislative Reorganization Act in 1970 that reduced the power of chairs, it increased the power of leadership in assigning chairs, and slashing committee staff. And these all hurt committee autonomy and committee power, and gave more power to the Speaker.  

Another key moment was in 1995. Newt Gingrich comes to power as Speaker and he doubles the number of votes of the party Speaker on the steering committee, increases the hold of party leadership on committee chairs, and he further cuts staff. So we’ve really seen a huge decline in the number of staff that Congress relies on. They have several thousand fewer staff than they did a few decades ago. And this loss of staff—who are really key to helping committees specialize—along with the increasing grip of the Speaker on chair selection are really emblematic of this trend. So you have a stronger Speaker in the House right now and you have weaker, less autonomous, less specialized committees.

We also see a similar trend in the Senate. The Senate in the first half of the 20th century was known as a decentralized chamber in which parties struggled to maintain control. But deliberation declined in the second half of the 20th century because senators were struggling with a lot of committee assignments and with a rising workload. And similar to the House, committees also lost staff relative to parties. So though the overall level of Senate staff has remained relatively similar, the number of staff working under the party, and I find this statistic really crucial in understanding the story, the number of staff working under party leadership increased by 263% between 1977 and 2016. So again, we see the power flowing from committees to party leadership.  

I think it’s interesting to end by noting that we are discussing this at a very interesting time in terms of this push and pull between party and party leadership and committees. We’re at a very unique moment with Speaker Kevin McCarthy coming to power. He’s a Speaker who faces the threat of the motion to vacate, and he leads—as we’ve all seen in the strife leading up to the Speaker vote—a divided party. Looking at this as a scholar of committees, I do wonder if this opens up some space for committees and committee leadership to reclaim some power because we see a weakening party leader and Speaker. And this might leave some space for another golden era for committees, but I guess we will see how that unfolds.

Kevin Kosar:

Before I close this off, I just wanted to get two quick things in. First, you may be surprised to hear that there are fewer committee staff in the House of Representatives today than there were 40 years ago. This is not a great formula, considering that government has got much more and larger responsibilities.

Second point is that we’ve seen a breakdown—particularly in the House of Representatives—of regular order. This is the sort of “Schoolhouse Rock” way of getting work done where a bill gets introduced and then it gets referred to committee, and then the committee decides what to do with it. And ultimately, it may amend it and rework it, but it gets reported out with some assumption that it has a decent chance at getting a vote. Nowadays, that’s not the way things frequently work. Instead, you have policy being made elsewhere: frequently amongst leadership, frequently with the House Rules Committee weighing in, drafts of bills being swapped in at the last moment that look different from the work product that may have come in—all of which can lead to a diminishment of committee strength.

All right, we have reached our time. Dr. Maya Kornberg, thank you for helping us better understand congressional committees and what they do in Congress.

Maya Kornberg:

Thank you so much for having me.

Kevin Kosar:

Thank you for listening...

The topic of this episode is: “Partisan polarization: Is it crippling Congress?”

My guest is Frances Lee. She is a professor of politics and public affairs at Princeton University and a top scholar on Congress. She is the author and co-author of many articles and books on Congress, and has written for popular publications including the Atlantic magazine and the New York Times. Most recently she and James Curry published, The Limits of Party: Congress and Lawmaking in a Polarized Era (Chicago 2020), which analyzes and addresses the subject of this episode—polarization in our national legislature.

Kevin Kosar:

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

Professor Lee, welcome to the podcast.

Frances E. Lee:

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

Kevin Kosar:

Let's start by ensuring that we all are on the same page: you, I, and listeners alike. When we speak of Congress, what do we mean by the term partisan polarization?

Frances E. Lee:

Partisan polarization has multiple meanings and I think that's probably why you began with this question.

A layman's or a dictionary definition of polarization means division into two sharply contrasting groups. Congress is clearly polarized in this sense. Congress sees much more partisan conflict. Conflict in Congress breaks down more reliably on partisan lines than it did throughout most of the 20th century. We routinely see votes that pit 90% or more Democrats against 90% or more Republicans, a partisan divide that's more deep and predictable than we used to see.

However, by partisan polarization, political scientists often mean something more technical. In its most rigorous form, the concept of polarization is grounded in spatial theory. It rests on a theorized choice space in which policy preferences are ranged on an underlying continuum from left to right. In this sense, parties become more polarized as the preferences of members become more distinctly bimodal, and as the two parties’ modes move farther apart from one another.

It's far from clear that parties are polarized in this second sense. The problem is that the issues at stake in congressional politics are diverse. On some issues, the congressional parties have moved closer together and on some issues, they've moved farther apart. There's little doubt that the post-Trump parties in Congress are farther apart on immigration than they were. There's a growing partisan divide opening up on transgender issues. Clearly, the parties are farther apart today on issues relating to the COVID pandemic than they were in March 2020.

But on other issues, the parties have moved closer together. Republicans and Democrats differ less on trade policy today than they did in the past, with the Republican Party having moved more toward a more protectionist stance under Trump. The budget deficit and government spending became less partisan during the Trump years as both parties came together around an unprecedented response to the COVID pandemic. Trump presided over a significant reform of criminal justice policy. It was bipartisan. Republicans and Democrats in Congress have worked together on foreign policy a lot over the past decade from sanctions on Russia to the huge Ukraine aid package under Biden. There's reporting in the lead-up to the congressional elections of 2022 that the Republican Party has given up on the issue of Obamacare repeal.

So have the parties moved farther apart or are they closer together? I have no idea how to characterize the parties in an absolute sense. It depends on what issue you're talking about. I'm not sure how you go about averaging across all the diverse issues on the congressional agenda to say that the parties are farther apart ideologically than they used to be. I think it's clear that Republicans and Democrats are more partisan in their voting behavior, but what that means in terms of ideology is contested.

Kevin Kosar:

It sounds like one temptation we have is to associate stark differences in voting behavior with the legislators themselves believing very different things rather than the possibility that some are simply voting strategically, voting with their crowd, or for other reasons—perhaps getting through the primaries or something. Is that right?

Frances E. Lee:

That's right, absolutely. Of course, nothing produces more reliable partisan voting than questions of procedure—who's going to control the floor agenda? The majority party supports its leadership in controlling the floor and the minority party contests it, and that continually produces party line voting. But what does that mean in terms of the party's larger ideological agendas? It's not clear. It's this contest for power over the agenda.

There’s also positioning related to elections. Elections are zero-sum, so you can cast votes with an eye toward the stance that you want to portray your party as having on an issue, rather than expecting those votes to have any effect on public policy.

Kevin Kosar:

Right. We shouldn't confuse symbolic action in some cases with the essence of the matter and assume that people have lost negotiating space that may actually exist.

I feel like those of us who pay attention to Congress have read so many articles—of one sort or another—which say we are a way more polarized Congress or a way more polarized nation than ever before, or at least in recent memory. Based on what you’re telling me, that seems to be a bit of an overstatement.

Frances E. Lee:

Intense partisan conflict is not new to US politics. I think it's probably the normal state of affairs.

The decades after the Great Depression in which an internally divided Democratic Party enjoyed nearly continuous majority status for decades was a period that was lower in partisan conflict than is typical for the whole sweep of US history. It's probably an exceptional period rather than the norm, but it tends to be the period against which people tend to benchmark the present and they say, “Well, it's more partisan than it was in the '50s or the '70s or the '80s.” So those decades then become the comparison point.

My qualitative work looking at partisanship in Congress over time suggests that members of Congress virtually always say and probably feel and believe that things are worse now than they ever have been before. They've been saying that as long as far back as I can find. They said it during the Reagan era. They said it under Clinton. They said it under George W. Bush. They of course said it under Obama and under Trump. I even found members in the 1970s telling reporters that Congress had never been as partisan as it was then. Of course, the early '70s are the nadir of partisan conflict as far as roll call voting goes, but it didn't feel that way to embers of Congress at the time.

So I tend to take all these claims that things are worse now than they have ever been before with a grain of salt. Conflict is just endemic to Congress. I'm a political scientist, not a historian, but I haven't found a period in congressional history where there wasn't intense conflict on at least some dimensions in Congress.

Kevin Kosar:

Absolutely. During the New Deal era, many Republicans were accusing the President and Democrats of destroying the constitutional order, taking over the economy, being a dictator, and possibly ushering in a new kind of American version of socialism or fascism or some sort of strongmanism backed by a potent party. That language was out there, but I think we forget it as we think back to the greatest generation in all those glorious years.

Frances E. Lee:

I think we forget it as the issues that sparked such intense conflict fade. And so the current issues loom so much larger, and we say that it's so much worse now than it was then. But I think to a great extent, it's an illusion.

Kevin Kosar:

So we say we don't want to wave away polarization and just say doesn't exist. And it sounds like you say that it certainly does exist, but it is issue-specific as opposed to a general ideological parting of ways between the parties. Is that fair to stay?

Frances E. Lee:

Well, I'm just agnostic on that question because I really don't know how one goes about characterizing all the issues before Congress in a single abstract space. We see the parties move closer together on some issues and farther apart on others. We also know that they behave in more reliably partisan ways than in the past. So that's an objective fact about life in Congress today. But how we interpret it, and what it means for the policy stakes, I think we need to view that issue by issue.

Kevin Kosar:

Right, and I suppose the only thing that we can clearly point to and say, "Hey, this looks a little different than say 50 years ago," is the voting behavior. The days when conservative Democrats would work with Republicans and push some fiscal responsibility legislation or military buildup legislation seem to have disappeared for us, but maybe not.

Frances E. Lee:

Well, what we don't see today is a party able to pick off a handful of members of the opposing party to put together a small bipartisan coalition. But most everything that becomes law today has big bipartisan support. What you see today is that policy that becomes law is negotiated between both parties—the leadership of both parties. And so when something passes, it tends to command majorities of both parties, not a majority of one party and some moderate members or a handful of the other party. But on legislating, we see big bipartisanship today. That really hasn't changed.

Kevin Kosar:

And this gets to the crux of the issue. There's so much anxiety that Congress is broken, that it just can't get things done, and therefore all power is flowing to the executive branch and the judiciary and Congress is just this awful cacophony that's not making policy. Based on your research, this caricature sounds like it’s not even remotely true. In fact, Congress is working in a bipartisan fashion and on landmark and significant pieces of legislation too.

Frances E. Lee:

That's right. I think the congressional gridlock narrative has taken on a bit of a zombie status, and it persists in the face of a lot of evidence to the contrary.

Recent congressional productivity has been quite remarkable. The COVID response in 2020 was historically vast—by far the largest crisis intervention in US history, larger in inflation-adjusted terms than the 2009 stimulus and the whole New Deal combined. You really can only compare levels of spending in 2020 with levels during war production in 1943. And this was passed in an entirely bipartisan manner.

And the 2020 Congress—so this is the Congress in the last presidential election year—did a whole lot more than COVID. It also passed an important energy environment package as part of the “Coronabus” at the end of the year, which was the most significant environmental legislation Congress had passed up until that point. It passed a large parks and conservation package, a new free trade agreement with Mexico and Canada, and interestingly, a North American free trade agreement that had the support of labor. A paid parental leave package for federal civilian workers. That was 2020.

This Congress has continued with a frenzied lawmaking pace. It was kicked off with the American Rescue Plan—a huge package only exceeded by the CARES Act that had passed in 2020—a major infrastructure authorization, a huge science and technology competitiveness law—the CHIPS Act—a huge Ukraine aid package, a modest gun safety law, and then it managed to pass another big reconciliation bill—the multi-billion-dollar Inflation Reduction Act. So I ask: where is the gridlock here?

I think that commentators tend to mistake the difficulties that parties have with passing their programmatic agendas with gridlock. When they're frustrated that their party isn't able to deliver on its platform, they say Congress is gridlocked and Congress does have a really hard time passing partisan programs.

But that's often because majority parties cannot agree internally, not because of gridlock (the ability of a minority party to block). Obamacare repeal and replace failed because Republicans couldn't get their whole party on board. The same was true of Biden's Build Back Better package that failed. They salvaged a small piece of it with the Inflation Reduction Act because not all Democrats agreed.

Even if Congress isn't passing a partisan program, it can be accomplishing a lot legislatively, which is what we have been seeing. But these achievements tend to get quickly passed over by a news media that focuses primarily on conflict and...

The topic of this episode is, “What are the Duties of the Speaker of the House of Representatives?”

My guest is Paul Ryan. Paul Ryan was the 54th Speaker of the U.S. House of Representatives. In office from October 2015 to January 2019, he was the youngest Speaker in nearly 150 years.

Prior to becoming Speaker of the House, Paul served as the Chairman of the House Ways and Means Committee. He also served as Chairman of the House Budget Committee from 2011-2015. In 2012, he was selected to serve as Governor Mitt Romney’s Vice-Presidential nominee. Paul was first elected to Congress at age 28 and represented Wisconsin’s First District for two decades.

Kevin Kosar:

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

Speaker Ryan, welcome to the podcast.

Paul Ryan:

Kevin, good to be with you. Thanks for having me.

Kevin Kosar:

Article 1 of the US Constitution states, "The House of Representatives shall choose their Speaker and other officers." How does the House pick a Speaker these days?

Paul Ryan:

The way it works is the majority party in their conference—we call the Republican body the Conference, the Democrats call theirs the Caucus—will have a vote as to whom they nominate for Speaker. That's a plurality vote—the person who gets the most votes wins. Kevin McCarthy won that, which means he is to be presented to the full House on January 3rd when a new session is sworn in and he has to get—or she, in Nancy [Pelosi]'s case—has to get 218 votes. The Democratic Caucus will also vote on who they nominate to be the Speaker. If [Pelosi] stays, they'll probably nominate her. If not, I don't know, Hakeem Jeffries or somebody like that.

A candidate must win a majority vote—218 votes—on the House floor when the new session is sworn in. Then that person is sworn in by the Dean of the House—the longest serving member—and that Speaker becomes the newly-installed Speaker for that new session of Congress. Then that person swears in all of Congress. That's how it gets started.

Kevin Kosar:

The Constitution says the House shall have a Speaker, but it doesn’t provide a full job description. In the earliest days of the Republic, the Speaker’s duty was to preside over the chamber—to be the guy who runs the meeting. Times sure have changed. What are the duties and responsibilities of the Speaker today?

Paul Ryan:

Yeah, they're endless and infinite in some ways. It is not like it was in the old days. It's a bigger Congress—there are more states than they envisioned and the government does so many more things than it used to do in the first Congresses.

You're basically the chief executive officer of the legislative branch. You oversee the entire legislative branch, so technically you have something like 12,500 employees. In a way, you’re like the mayor of the legislative branch, overseeing the legislative council, the law enforcement agency, the power plant, the janitors, etc. And you have deputies that run all of that—whom you appoint—such as the Architect of the Capital, the Sergeant of Arms. So, there's an administrative side of being Speaker of the House that most people aren't familiar with. 

But you're also the head of the legislative branch. As far as the work of legislating in the House itself, you basically control the flow of legislation. You oversee your party's selection of memberships of committees and chairmanships of committees, and through your leadership team, you determine who does where, when, and how, more or less. That is, you determine what bills get scheduled to the floor. You work with the committee chairmen to make sure that they get their bills to the floor. You set the floor schedule and through the rules committee—which is controlled by the Speaker—you determine the way in which debate occurs: Are there amendments to be made, and in what order? What kind of a rule? Is it an open rule, where any amendment can be made in order, or is it a structured rule, where only certain kinds of amendments can be made in order? And by controlling the debate, you can control the outcome of that debate by virtue of the changes you allow or do not allow to happen to the legislation.

It's basically like an air traffic controller where you're doing the ground control, which is the committees—what are they doing and when are they doing that. And you're also doing air traffic control—what bills go to the floor, what bills get passed, etc.

You also have to negotiate with the Senate when they have legislation. In that case, you appoint the negotiators in conference committees to negotiate the reconciliation of legislation with the Senate, but sometimes that bubbles up to you and you become the primary negotiator with the Senate. Then you work on getting the White House lined up to pass something. So you operate negotiations—House to Senate, Congress to the presidency—and how the House curates and builds its legislation. That's the legislative side of it.

In the modern era, you’re a political person as well, because you're the head of your party for your body—for the House Republicans in my case or House Democrats in Pelosi's case—and you're probably also the top fundraiser for the party. So when you're not in the Capital legislating and managing the legislative process or the legislative branch, you're out fundraising for your party to make sure that members have the resources that run their campaigns. So it's three things: a political job, a managerial ministerial job, and then it's a legislative job.  

Kevin Kosar:

And I guess implicit in what you are describing is that, presumably as a Speaker, you have to spend a lot of your time bargaining amongst the factions within the party because there's always intra-party disagreement.

Paul Ryan:

Every day. I like to have a known schedule. I like to have a method for my week, so we would start the beginning of the week with a conference with all of our members.

Every morning would include a meeting with my leadership team to see what the day's going to look like, what the week looks like, and what the long term looks like. On Wednesdays, I would have lunch with the various heads of the various factions in the House Republican conference. So I stayed very close with the leaders of all the various factions—the Tuesday Group, the Study Committee, the Freedom Caucus, and people in between. And I'd rotate various people in so that I had constant lines of communication with the various factions in our conference and in between those as well because there's a big diaspora of different types of views and temperaments within just the House Republican Conference. So the key for me was constant communication.

Early on, we would craft a jointly assembled agenda where we all collaborated and worked on creating an agenda that we believed in, which we usually assembled in our retreats or different processes. Then we would go effectuate and execute our agenda, and while we were effectuating our agenda, maintained constant communication to make sure everyone was playing the role and getting constant feedback and input from people. And it's a consensus-driven process that you had to dry. It is not a dictatorial role. People think the Speaker just dictates. Not at all. You have to forge and bring consensus to get people to unify on a common cause so that you can pass legislation because not everything's going to be bipartisan. Some of it's going to be partisan—e.g., tax reform. So that's the day-to-day thing you do, and you have to manage all of these coalitions.

Kevin Kosar:

Before television became common in the United States, Speakers of the House were relatively unknown to 99% of America. That too has changed. Is communicating with the public, to be the voice of the majority of the House, also consume a lot of time?

Paul Ryan:

Yeah. You do two press conferences each week as Speaker of the House, one at the beginning and end of the week. So it's just open for the press to shoot at you and ask you questions. But then you have a lot of strategic communication in between, which is pretty much TV, radio, and print—but mostly a lot of TV—interviews. I think that’s part of the reason I got the job of Speaker—I actually didn't look for the job, it found me.

I don't know if you know the story well, but John Boehner left because the Freedom Caucus was going to invoke this motion to vacate, and he left to spare the members of that vote. The next guy in line—who is now the next guy in line, Kevin McCarthy—at that time didn't have the votes to get it. So the consensus came to me to do it. I was the chairman of the Ways and Means Committee at the time.

I think one of the reasons I became the consensus candidate that all the factions in Congress agreed to me was partly because I was a policy guy and a policy maker, and they agreed with the policies that I had been pushing through the budget and ways means committees. But also because I had already had a stint at the national political level running for vice president with Mitt Romney, I'd already gone through the gauntlet. I already got shot at a thousand times by the national media. I already knew how to handle national media and had the thick skin for national media exposure.

That was considered a key part of the job and is today a key part of the job. You've got to be able to handle national media exposure and operate in that environment. That was not the old days. That is definitely how you do it today, though. I don't think Tip O'Neill was necessarily the most charismatic TV guy. So speakers like that—and that was fairly recent history—didn't do communications. Today, the Speaker is also very much of a communications job.

Kevin Kosar:

That's an awful lot of responsibilities, which amounts to an extremely heavy load. Who helps the Speaker get all those things done?

Paul Ryan:

Yeah, your staff—and you have a pretty sizable staff. My life has always been planned in 15-minute increments. As Speaker, you basically try to balance your time, and your chief of staff helps you design your schedule. And then you have a whole bunch of people on your staff who help you organize your times—make sure that the meetings you have are very productive and try and curate resolutions to whatever problem you're trying to solve before the meeting happens. So when you get a meeting, you can more or less finish the job of solving a problem, getting to a decision, executing something, some sort of a mission, or something like that. So you have to have a lot of staff.

But different Speakers have different leadership styles. For instance, [Pelosi] really liked consolidating power in the Speaker's office. I actually recoiled against that. Frankly, the modern Speaker has too much power. My goal was to try to decentralize power as best and as much as I could. I felt that way because I was a committee chairman who believed that I and my fellow committee members should be writing the policy on the issues in our jurisdiction. After all, we were spending all of our time in that policy area, not somebody who maybe thinks a half hour a week on this issue up in leadership. My goal was always to push power, responsibility, and communications out to the committees where the specialists actually did the job.

That's the opposite of the way the Pelosi Congress runs, and I have every belief that Kevin McCarthy will decentralize power and re-empower the committees. But having said that, all of that as Speaker—because you command so much attention—you have to also communicate what those committees are producing. You have to communicate your party's vision and views on where they're going and the various policy nuances that are in between.

But the key to me in governing the place successfully—and as the Founders intended—is to decentralize power and equip the committees with the power and agency to formulate the policy in their areas of jurisdiction, because they're the experts. They're the ones who spend day in and day out combing through CRS (Congressional Research Service) reports, GAO (Government Accountability Office) reports, IG (Inspector General) audits, and all of the rest. They're the ones that really should be setting the policy, and that to me is the way Congress ought to be run.

Kevin Kosar: 

Yes, the process over the last 50 years where so much power has been traded up to the Speaker, arguably it's reached its apex, and it has some benefits. They craft bills behind closed doors and put them in front of folks and they vote it up or down. But at the same time, everybody seems to be miserable because they realize that as a legislator, they've traded away the essence of their job.

Paul Ryan:

Yeah, some people don't want to take responsibility for the choices you've made. But in a lot of it, I think it's just the consolidation of power that has accrued to the Speakership. I don't like that frankly. I didn't like it then. I don't like it now. I think a lot of it comes from the way the budget process has been basically broken. In order to address this, one of the things I got an agreement on within one of our omnibus appropriation bills was a bicameral committee on budget process reform. I put Steve Womack in charge of it for the House. So we had bipartisan members of the House and Senate to get us to a new budget process where we would decentralize power and have the budget committee and the appropriation committees actually write their bills, negotiate their bills, and pass separate bills.

Now, that Womack committee produced a great report on annual budgeting and different way of doing the budget only to be basically killed by the Democrats. I think [Schumer] and [Pelosi]—no offense to them, but they—like consolidating power. They like four corners deals. Four corner deals are where the Speaker and the Minority Leader of the House, and the Majority Leader and the Minority Leaders of the Senate—the four of them and their staff basically write a bill. I don't even think I have room on this screen to show the size of the bill—three feet thick—that funds all of the discretionary spending, well over a trillion dollars annually. And that is put together more or less by the Appropriations Committee, but molded and negotiated by those four people and their staffs. It is not how government should work. It gives far too much power to the Speakership.

I made lots of decisions. Frankly, I think I'm a smart guy. I've been around and I try to use good ethics and principles, but I made so many decisions—that I frankly shouldn't have been making—in the design of these bills and in negotiating these things. The committees with jurisdiction should be having the responsibility to make those decisions. So that's one of the unfinished businesses that I left—I tried to get it done with this bicameral committee, but it's going to have to be bipartisan.

Unfortunately, I think Democrats—whether it's because they're collectivists by nature or because they like consolidating power—don't want to participate in opening up Congress, decentralizing its power, and empowering rank-and-file members in the committee process to do its job. I think if you do, you're going to get a better product—it's going to be a more clear, accountable, and transparent government. But that is not what we have today, and it clearly takes both parties in both houses to agree on the solution on how to fix that.

Kevin Kosar:

You spent time as a representative, you spent time chairing a committee. You then spent time as Speaker, and now you've had some time away from the chamber. Drawing on that experience, drawing on your wisdom, if you had one piece of advice for an incoming Speaker, what would it be?  

Paul Ryan:

Decentralize the power. Open the place up. You won’t control or predict every outcome, but that's okay. That's the sloppiness of a republic and the way it should be. So just decentralize the power and restore the institution. The institution has been attrited away to the executive branch. Part of that's the Progressive agenda. Part of that's just power consolidation. But rebuild the institution of the legislative branch, and the best way to do that is to empower the members and decentralize its power within the institution. Get the power of the legislative branch back.

Kevin Kosar:

All right. Speaker Paul Ryan, thank you for helping us better understand the responsibilities of the Speaker of the House of Representatives.

Paul Ryan:

Good to be with you, Kevin. Thanks for having me.

Kevin Kosar:

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

The subject of this episode is, “Are elections fueling polarization in the House of Representatives?”

Polarization in Congress is a well-documented fact of life. This is particularly true on high salience issues, such as immigration and abortion. Yet the tendency of legislators to reflexively oppose policy ideas offered by the other party has bled into other, more prosaic issues. For example, in late 2021 an infrastructure bill became a bone of political contention. Republicans who voted for it were denounced by their colleagues. Nevermind the fact that the legislation might actually do good for these legislators’ constituents.

Why are there so many hard left and hard right members of our national legislature? To help us think through this issue, my guest is Andrew B. Hall, a political scientist at Stanford University. Dr. Hall has published many articles on elections and representation and is the author of Who Wants to Run?: How the Devaluing of Political Office Drives Polarization (Chicago, 2019).

Kevin Kosar:

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

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

Andy, welcome to the podcast.

Andrew Hall:

Excited to be here. Thank you.

Kevin Kosar:

If I had a dollar given to me every time somebody said, “Congress is polarized because Americans are polarized,” I'd have enough bucks to take a really good vacation. The idea that America has become the land of red states and blue states, with right wing rural folks and left wing city folks, has become pretty popular. You see references to it in the press all the time. So that prompts the question—we have a polarized Congress: are voters the reason we have a polarized Congress?

Andrew Hall:

It's a very reasonable question. I don't think it has nothing to do with it. I do think it's true that some Americans have become quite polarized. Obviously, we see it play out with things like the rural-urban divide that you're talking about. But I think that there's a really important fallacy that a lot of people don't always think through when they think about Congress polarizing, which is that there's absolutely no guarantee that any change or non-change in people's opinions, will map into what congressional candidates or members of Congress say or do, because there's this intermediate step which is really important—who actually decides to stand up and run for Congress? If the people who decide to run are just systematically different from what the voters at large want, then unfortunately, what people want or what they think or how they think or how polarized they are may not have any reflection in what options they're actually presented to vote on.

So—to get back to your question itself—I think it's of course true that people are polarizing to some degree. I think it's vastly overstated. And when you look into evidence on most salient policy issues, it turns out that there's a large chunk of Americans caught in the middle, who find both parties unpopular, and who don't like the positions being espoused by lots of salient political officials on either side. But the people who actually run for Congress are polarizing super dramatically, so the voters are not being given a lot of opportunities to vote for the types of people they would prefer, who might actually be more moderate.

Kevin Kosar:

Well, if this is not a bottom up phenomenon, if it's not the case that the average American has a really intense view one way or another on all sorts of issues, like updating the Electoral Count Act of 1887—on which we had a party-line vote in the House the other week. If that's not the issue, a polarized public driving everything, then is this about the political parties? Are the political parties simply recruiting candidates who are on the extreme left or extreme right?

Andrew Hall:

I don't think that aren't part of the story. I think parties are driven by the kinds of people who are willing to spend a lot of time on party-related activities. And those people are not going to be very representative of the public at large. They're going to be particularly passionate people, who might have more extreme views, and so they may want to go out and recruit candidates who fit their viewpoints. That certainly could be part of it. The thing I always like to emphasize though is that the word “party” carries a lot of connotations that don't make sense in the US system. The parties in the US are extremely weak. They don't really have a lot of carrots or sticks to offer people who are running or who have decided to run. For example, one of the most important things—that not everyone knows—is that anyone can run for office and say they're a Republican or a Democrat. The parties are feckless to define what it even means to be a member of the party because of this completely open system that we have.

If you look to parliamentary systems in Europe, the party can actually define who's on the ballot and even—in some places—order them or kick someone off if they're not reflective of what the party wants. That's just not how our system works. So when we think about the parties running candidates in the US, they just don't have that much to offer. They can beg people to run for them and they can certainly link them up with resources that help them run—such as campaign finance or other types of advising—and that definitely makes a difference, so I don't want to say they do nothing. But at the end of the day, they both struggle to convince people to run, because it's not a very appealing job.

They're also powerless to prevent people from running, which is—of course—most famously what we saw with Donald Trump, who was in no way a Republican, and who the Republican Party at large did not want to run in 2016. And yet look what happened. But more generally, they're not that powerful at determining who runs. So, if we want to explain the set of people who do run, especially for Congress—which is a lower salient office compared to president—we need to look to other explanations besides just party recruitment.

Kevin Kosar:

If the parties are not these powerful entities that can screen out people, at least not in the US context, what about the primaries: this process by which you have a low turnout election, often in the summertime, where if you're a Democratic voter you get a ballot and it lists only Democrats. And if you're a Republican voter, you get a ballot that lists only Republicans. And if you're an Independent or something else, you either can't vote or you have to declare yourself for one party or another, which is frequently the case. Is this creating a self-selection process? Are primaries driving extremism in Congress and, therefore, polarization?

Andrew Hall:

I definitely think primaries are part of the story, and the reason I think they're part of the story is that I think there's a general phenomenon in American politics across a wide range of contexts where more extreme people care more and are more willing to show up, do stuff, and speak loudly. If we look across the entire system—whether it's showing up at local city council meetings, tweeting relentlessly about your political views, or voting in a primary—we've created a system where, at almost every phase of every important part of the process, these small groups of people with extreme views are massively empowered relative to the rest of us, which I think is hugely problematic. I think primaries are a good example of this, where the set of people who turn out is a very, very small slice of the electorate. The turnout rates are remarkably small and it seems like they do have very different views, on average, from the rest of us. That can create and complicate incentives. One thing it does—which is related to what I think is going on—is it might give a more moderate candidate pause in thinking whether to run for office or not because they might not look forward to having to survive a bruising primary against someone who might be more naturally popular with this small primary electorate.

On the other hand, if I had to rank order the different parts of the system that are giving advantages to more extreme people, I wouldn't rank primaries as high as conventional wisdom might suggest. That's because primaries are really complicated, and there's a lot going on in primaries that's not ideological. If we look across the country, we can find lots of cases where, in fact, the more extreme person—the more culture wars-type person, whether on the left or the right—isn't actually the one who succeeds in the primary. These advantages are not deterministic. I think a really good example—whenever you see one of these exaggerated newspaper articles about how primaries are fueling polarization—is trying to explain how Brad Raffensperger won his primary in Georgia, because I think that would've been just a textbook case for why supposedly the primary voters should have voted him out—because Trump didn't like him. Yet, that's not what happened, so I think the story's more complicated.

The thing I always like to remind people is that there's hundreds and hundreds of primaries each cycle, and most people are not paying attention to House primaries. The news only seizes on a few really wild and salient ones, but there're lots of other ones where who wins and who loses is complicated and doesn't really fit with a nice, clean ideological story.

Kevin Kosar:

Yes, when I talk about primaries with folks who are not political scientists or politics geeks, I like to remind them that in Ohio, my home state—a bellwether state—only 25% of voters are registered with either party. But Ohio has a system where if you're an Independent, you can vote in the primary. Nonetheless, last time around in the Senate primary, only about one in five voters bothered to show up because it's in the middle of the summertime and that's just not where your brain is at in the summer—to go out to the voting booth to go vote in a primary.

Andrew Hall:

This is why I'm pretty pessimistic on all of these reforms to primaries themselves. One of the things people have talked about is opening up primaries versus having them closed, which means, do you require party registration to vote in the primary or not? In theory, opening it up should allow a broader set of people to vote and nominate maybe a more moderate candidate. In practice, whenever we've looked at that empirically, nothing happens because you just don't move on the margin. You don't get any more people to turn out when you set the rules up one way or another because—in either case—there's a small set of people who care a lot and will show up no matter what, and a broader set of people who don't care enough or are not willing to pay the cost of figuring out how to vote in this primary. So it’s much harder than we think to break some of these links between being a more extreme, passionate person about politics and being the ones who are willing to do all the extra work that makes politics move.

Kevin Kosar:

And on your point about it being more complicated when thinking about primaries and why the results are as they are, we can't forget about the factor of money: the extent to which primaries have become places where dark money and various PACs—from out-of-state frequently, out-of-district—are just pouring resources in to stoke the image of one candidate and to trash the image of the other candidate. That's just advertising, that doesn't have anything to do with where people are at emotionally and how it aligns with ideology can be pretty messy. For example, there are some hard right dollars flowing into campaigns that are supporting folks who aren't necessarily hard right—they just happen to be the favorite of that interest group.

Andrew Hall:

Yeah. Actually, it's really interesting you brought that up, because we're pretty close to finishing—I think in the next month or two—a study of this issue of out-of-state money, so just to give you a few thoughts on what we've found. First of all, I think everyone who monitors this knows it's been going up and up over time, but one thing that I don't think has been fully appreciated is how much the pandemic seems to have shifted it even further. There's a massive acceleration in 2020, in the amount of money that's coming from out-of-state. This is not even dark money by the way. This is just standard FEC donations to candidates. Part of the reason we think that—we're finding in our study at least, of why—it's going up so much, is that changes to the media environment and especially the internet and online fundraising have made it much easier to raise money from out-of-state.

If you think about how that's changing elections, obviously the preferences of those out-of-state donors might be quite different. In addition, the way I'm always thinking about these things is in terms of who is then willing to run. If you know that these campaigns are going to be driven by the types of people who can get onto cable news or run online ads that get them out-of-state money, then you might think it's going to affect who's willing to run in the first place. Maybe—as a centrist person—I know in advance that I’m not the type of person who's easily going to be able to raise that out-of-state money because I don't excite the out-of-state donors as much. I don't have a national leading profile. That could be an important part of this phenomenon.

Kevin Kosar:

Excellent, I look forward to seeing that research.

So it's time for the big reveal. Partisan polarization in Congress. If the public is not the overwhelming cause, if the parties and their selection of candidates are not the main cause, and if primaries are not the big factor, then what does your research indicate?

Andrew Hall:

My research is about how the whole package that we've built—in terms of how Congress works and how our elections work—is not set up to make the job of being in Congress appealing to the vast majority of people, including most centrist, more pragmatic types of people.

There's a lot of reasons for this, but some of the main factors I would point to are on the congressional side: the fact that Congress has been systematically shifting over the last few decades in a way that gives more and more energy and the power to drive legislation forward to a pretty small set of party leader actors and taking that away from members of Congress at large. You see this also in the declining resources given to the committee system in Congress, for example. These are all things that make it less appealing to be an average member of Congress if you're a centrist who cares about getting things done, because your individual impact on the legislative process is significantly less than it used to be. That's one factor, looking ahead to what your job's going to be like in Congress and sensing you don't have the same opportunities to drive forward policy that you used to. You might solve some, but not as many.

The second, which is related, is that there's this sense that it's not a job that is held in as high esteem as it used to, for a variety of reasons. Interestingly—a lot of people don't believe me when I tell them this, but—it's not a job that pays as well as it used to either. That's in large part because Congress is responsible for setting its own salary, and it's incredibly unpopular for members of Congress to vote to raise their salaries, so it doesn't keep up with inflation. In real terms, members of Congress’ salaries have declined quite a lot since the 1960s.

I am not saying that I think current members of Congress should get paid more, but I am saying that a system where they have fewer opportunities to impact the policy process, their job is held in lower esteem, and they're not paid as well as they used to, is a system that's not going to attract a lot of very practical, pragmatic centrist people who might have other job opportunities where they feel like they can have a bigger impact. At the same time that those shifts have occurred, we've also made running for Congress harder than it used to be. In terms of the relentless expectations, particularly of calling people up and asking them for money—which is not a job most people like—as well as some of the kind of more tabloid media coverage, which is risen as a phenomenon in the last 30 or 40 years.

When you put this all together, my argument is that it's not a job very many people want. Indeed, when you ask most people if they want to be in Congress, they say no. So, when you've built this system where it's very, very hard and unpleasant to run for office, and what you can do when you're in office has attenuated a lot, then you have to ask yourself, "Well, who's going to want to run?", when that's the deal that we're presenting people. It turns out—and we have lots of data to support this—that the people who stand up and say they want to run, are quite ideologically extreme and are quite unrepresentative of society at large. So, I think if you want to understand why Congress is polarizing so much over time, the fact that the people running are just a lot more extreme than they used to be and they're quite unrepresentative of voters is a critical element you have to look at.

Kevin Kosar:

Well, that sounds plausible, and that might explain the fact that it seems that there are so many show horses as opposed to work horses in Congress today—the number of members who show up on Capitol Hill and decide that they want to spend a significant amount of their time on social media, doing podcasts, doing video conversations on various niche internet channels, etc. when you would think that they might be busy studying public policy, engaging in oversight activities, etc. I could see a connection there. That's not really what they're signing up to do, which is to govern. They're signing up to preach ideology. So what do we do about it? As a closing question for the listeners, is there any...

The topic of this episode is, “Are members of the House of Representatives legislating in the dark?”

My guest is James Curry. He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book Legislating in the Dark: Information and Power in the House of Representatives (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress?

Kevin Kosar:

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

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

Welcome to the podcast.

James Curry:

Thanks for having me.

Kevin Kosar:

Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so?

James Curry:

So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons.

First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process.

Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills.

So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to support that legislation. On a grand scale, this means that lawmakers with more knowledge and information are going to have more power. And, as it turns out, these are often the same people who hold other institutional power positions like party leaders and committee chairs. These folks are typically not only well versed in a subset of policy issues, but they also have large staffs at their disposals to provide them with additional expertise. This enables their involvement in policy-making at high levels and gives them greater sway over their colleagues’ votes in trying to get them to support or oppose whatever is being considered on the floor that day.

Kevin Kosar:

That makes perfect sense, and it comports with something I was looking at not too long ago—House rules—and it was impressive to me just how complex the rules of the chamber are. And upon seeing them, it brought to mind the old quip from John Dingell, who was in Congress for a very long time—a powerful member from Michigan—who said that "If you write the bill, but let me write the rules, I'll screw you every time." By virtue of knowledge of procedure, he could get things done and get them done to his liking that other people could not.

Now, 50 years ago, Congress beefed up its core of legislative branch support agencies. This was a direct response to the “imperial presidency,” where presidents had tons of agencies to draw upon, tons of experts to draw upon, and the presidency was being viewed by Congress as having gotten too big for its britches—it was pushing the First Branch around. So Congress did a whole lot of stuff 50 years ago, including creating the Congressional Budget Office (CBO) and turning the Legislative Reference Service into the Congressional Research Service (CRS)—a full-blown think tank—amongst other actions. Yet here we are 50 years later and—by your assessment—these entities have not been enough. Why is that?

James Curry:

I guess the important questions are for whom are they not enough and for what are they not enough, because these are really important entities for Congress. They provide the institution as a whole with a ton of expertise, with a lot of resources at its disposal that it can and does use to learn about policies, dig into details, develop ideas, and figure out where they're going to go in the long term. I think they also helped Congress push back against an executive branch that is just rife with knowledge, expertise, and resources.

However, what CRS and the CBO cannot do is help lawmakers in the moment when they have to decide on whether or not to support a bill. CRS and the CBO are not built to provide each member with rapid responses to specific questions about a bill that's on the floor in that moment. Often, CRS cannot finish studying a proposal and its implications before it passes. Ideally, CBO provides a fiscal score to a bill before it's considered, but that doesn't always happen either, depending on the speed at which the lawmaking process is going. So, these resources are important, but they can't help bridge the gap between what the rank and file know about what's going on and what party leaders know about what's going on. It doesn't change that gap that exists between the lawmakers who are in the know, who have plenty of resources and expertise at their disposal—including CBO and CRS when it's developing legislation—and what the rest of the membership knows when it's now asked to decide whether or not to support or oppose this thing.

Kevin Kosar:

It sounds like part of what's happened is that there has been a loss of what we call regular order by which a bill gets introduced and goes to committee and maybe subcommittee, then follows a deliberate process, and then eventually gets put on the calendar. Frequently what we see today is something that looks a lot different—what Barbara Sinclair called Unorthodox Lawmaking. And one feature that you flag in your book is the omnibus bill as contributing to this information and power asymmetry situation.

James Curry:

Yeah, we’ve recently seen more and more laws being passed in these large, thousands of pages-long omnibus bills that start out as something that's focused on maybe one specific major policy debate, but get expanded to include—and have attached to it—all sorts of other things that Congress has been working on. The challenge for a typical member of Congress is getting this massive bill—usually not long before it's going to be voted on in its final form—and having to figure out what to do. Beyond this, these omnibus bills are more often getting negotiated behind the scenes—negotiations among top party leaders and maybe some top committee chairs who are brought into the fold—in which they figure out what can and can't be done, what is going to be included, and what's going to be excluded from this bill so that leaders on both sides of the aisle can agree to pass this thing.

But then it's brought back to the rank and file and presented to them by leaders who were the only people in the rooms where the negotiations were happening. They're the only people who can say with any credibility, “Oh, well, this is the only deal we could get, this is the best deal we could get for our side of the aisle. This is what was on the table and what wasn't,” and so on, and then present it to them in the short term as a take it or leave it proposition. This all makes it really hard if you're a typical member of Congress who wasn't involved in the negotiations and didn't get to see the final package until the last minute to make an independent decision about whether or not you think this is a good idea for your district or your state. It means you're more likely than not to support it because it probably has some stuff in there that they can sell you on, even if you didn't really get to dig into every aspect of it.

Kevin Kosar:

And, if it's an appropriations omnibus and there's the possibility of a government shutdown if you don't vote for it, you face all the more pressure.

James Curry:

That's right, and this is typically where a lot of these omnibus bills originate. They usually originate with the effort that Congress goes through in the fall and winter to keep the government open—pass these 12 appropriations bills as one large package, or they're connected to other things like the Annual Defense Reauthorization, which has to happen. Or, if you go back to the winter of 2020, a lot of this stuff was connected with much-needed COVID relief that was being negotiated over in late December of 2020. So you're opposing something that everybody wants—at your peril—but attached to it are all sorts of things that you probably didn't have a lot of time to think through in a lot of detail.

Kevin Kosar:

Well, earlier you noted that frequently, the people who are in the power positions in Congress are also the people who are particularly expert or have information that your average member does not have. That could be just a coincidence, but it's more than that because chamber leaders—we have evidence—actively withhold and try to control information, which sounds a little nefarious. Why do they do that?

James Curry:

They do it in large part because it helps them get something done. Congress today is operating in an incredibly difficult political environment. We have a really intense two-party conflict, a lot of really strong feelings on both sides of the aisle. We have a constant desire to have a public presence and public position-taking on issues, which members of Congress do to an unprecedented degree on social media and other places of taking really strong stances.

Well, say you're now a congressional leader, and you have to try to strike bipartisan deals to get things done since most things still have to build bipartisan support to actually get done. A good way to do that is to try to take control of the process and try to withhold information about the details of what's being negotiated until the last minute because any leaks about “This was being considered,” or, “This was taken off the table,” could cause hardcore partisans on each side to just explode in fury, oppose the whole thing, and bring the whole thing down.

This is why leaders often move all this decision-making behind the scenes, why they shut down what used to be really open amending or free-wheeling debate and amendment in committees and on the floor. From the perspective of party leaders, these processes—good as they were for enabling deliberation in Congress in a different era—have just become tools for opponents to embarrass the majority, gum up the works, and try to tear legislation down instead of building it up. Whether or not that's 100% accurate, that's the thought process of leaders. They do this so they can try to get things done, but it has the consequence of moving a lot of the deliberations that actually happen in Congress behind the scenes and really centralizing the core of those deliberations in a small number of key lawmakers.

Kevin Kosar:

So how do leaders withhold that information? Is it just by virtue of the fact that they got the bill and they've got the final draft until the last second—“Here it is. Take it or leave it.” The person obviously is not going to have an opportunity to read the bill as we expect all legislators to do. Is that basically their main move for withholding information or are there other ways that they engage in that?

James Curry:

It's the main move, but they can also do things like changing the legislation at the last minute.

You'll see this a lot in the Senate these days where—procedurally—it can take so long to move something through the Senate floor that Chuck Schumer or whoever the majority leader is at the time will put the legislation on the floor and start the debate while he's still negotiating the final details of it behind the scenes with key senators who are withholding their votes. These days, that's primarily Joe Manchin and Kyrsten Sinema. Then, after several days of debate, he announces that there's a substitute amendment that they'll be bringing up and voting on really quickly, very shortly after which they'll be voting on final passage as well. So for the rest of the senators who weren't involved in these core negotiations between perhaps Schumer, Manchin, Sinema, and maybe one or two other lawmakers, they're sort of left without a whole lot of time to really process the changes that were made.

From a procedural standpoint, offering a substitute amendment to a bill doesn't necessarily make it super easy to track what changed and what didn't, because they don't have the changes lined out and replaced (e.g., we cut this paragraph and replaced it with this paragraph). It's just, “Here was an old 2000-page bill and now here's a new 2000-page bill, and we'll tell you what changed and why you should support it.”

Kevin Kosar:

Yeah. That is a common gripe amongst newer legislators, particularly in the House, “Why can't we see tracked changes? Because it makes it really hard for us to do our job.” And the answer is, well it's perhaps not in the interest of those in charge that you can track changes.

James Curry:

Perhaps by design.

Kevin Kosar:

Yes. To build on your point, one thing I've also noticed is that you were speaking about the Senate. But in the House, the Rules Committee will often write a rule that might encompass more than one piece of legislation and deem that if you vote for the rule, both these pieces of legislation or considered enacted by the House.

James Curry:

Yes.

Kevin Kosar:

And you as a legislator are looking at a very short rule that is just making reference to some larger piece of legislation and they're bundling things together. So that also adds to the take it or leave it because you can't just pick what you don't like and vote against it.

James Curry:

That's right. These self-executing rules change the underlying legislation upon adoption of the rule or deem other things passed or other things amended, and it can be hard to follow if you're just in a typical member's office because there's a lot going on. These rules keep getting longer and longer if you read them and then they'll reference a very long Rules Committee report that includes more information. It's not just a simple one-paragraph special rule that you might have seen a couple of decades ago. It's a lot to follow, especially if you're a new member of Congress and you have new staff who haven't been doing this for years. It's easy to get caught off guard and not be able to easily follow everything that's going on, which puts the people running the show in the driver's seat.

Kevin Kosar:

It sounds as if two cherished values that we have for Congress, number one, is that it gets stuff done—call it partisan efficiency if you like. You're the majority, pass the bills. Another value they should be deliberating seems like intention. And question one might ask is, well, what's the downside of having legislators in the dark if they're moving the bills along? At least Congress is getting stuff done, right?

James Curry:

Yeah, there is that upside. This does help Congress get things done in an era where it's really hard—for the two sides to come to agreements. But I think the downside is clear—you have a large number of members who have a harder time having their voices heard in the deliberative process. This is bad if you want representative deliberations on everything that passes. You may hold the ideal, “This is supposed to be a Congress with one representative from every corner of the country and two senators from every state who can weigh in, and make sure that if something passes, it has broad consent from across the country.” If not everyone has an equal opportunity to weigh in, then by definition, you're not building that broad-based, representative support that the Founders wanted out of this system.

And it's not that it's impossible for junior or rank and file members to get their voices heard or to insert themselves in the process. It's just really hard compared to the old days and under regular order for a junior member of Congress to offer an amendment in committee or offer an amendment on the floor, or at least voice what they would like to see change or at least voice their concerns.

These days, if you want to get something changed in a bill, you have to find a way to get the attention of your leaders who are involved in these behind-the-scenes negotiations and build a coalition of like-minded legislators—all of whom are willing to withhold their votes on the final package in the...

The topic of this episode is, “Who was the meanest man in Congress?”

My guest is Timothy J. McNulty, who taught journalism at Northwestern University and spent more than thirty years at the Chicago Tribune. During his years as a journalist, Tim was a national and foreign correspondent, and also an editor. He logged untold hours paying attention to Congress and its many characters. And importantly for the purposes of this episode of the podcast, he is the coauthor of a terrific book, The Meanest Man in Congress: Jack Brooks and the Making of an American Century (NewSouth Books, 2019).

Kevin Kosar:

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

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

Welcome to the podcast.

Timothy McNulty:

Thanks very much for having me.

Kevin Kosar:

Thank you for being here.

Jack Brooks served in Congress from 1952 to 1994. He was called a number of names: the snake killer, the executioner, and the meanest man in Congress. Why?

Timothy McNulty:

Well, each one had a very set reason in Congress. “The snake killer” was him using an old Texas term when he went after President Ford's early budget. He said to reporters then, “Well, the best time to kill a snake is when it's young.” So that's what Ford did. “The executioner” is what Nixon told some of his aides, because Brooks had been really a driving force in the Judiciary Committee. Peter Rodino was the head of it, but he was taking it very slow, and Brooks wanted to speed things up. So that's what bothered Nixon. And then “the meanest man” was something that Brooks had a great deal of pride in, because his questioning on the Government Affairs Subcommittee struck fear into a lot of bureaucrats and corporate leaders who were called to testify, because he didn't blanch at any kind of power or anything else, whether it was Marine Corps generals or heads of General Motors or government department heads. He just went after them. So he got that “meanest man” title and wore it proudly.

Kevin Kosar:

Yes, yes. Brooks himself, as you detail in your book, was a Marine, and he was in World War II. He saw many intense things and he endured a lot, both in his upbringing and before he got to Congress. But the listener might be wondering: if Brooks was so mean, how come voters reelected him every two years for four decades?

Timothy McNulty:

Well, of course, he looked after his district. No matter what other public pronouncements or other publicity he got, he was never that interested in being anything other than a congressman. And people recognized that. He of course brought home a lot of government money, especially for infrastructure down in Southeast Texas. But he also had his staff be very aware of constituent concerns, whether it was someone who's a mother who wanted her son to be able to come home because of an operation that she was having— He took care of things and made sure that his staff answered every letter, every message. And that's why I think— He also was a populist. This is in a very different era that you alluded to: a populist, a Democrat, in Texas! That was something that was seen as a great achievement: to be that strong and to have both conservative ideas and also very advanced or progressive ideas. He also was able to kind of meld his constituency. It was business leaders, but it was also union leaders. That was important in Southeast Texas, there on the border with Louisiana. So [he had a] fairly unique ability to get together members of the community, no matter what their title or station.

Kevin Kosar:

Yes. You mentioned his knowledge of his district. One of the particularly interesting aspects of his district is that it was in Texas, but it had a significant number of Black citizens in it.

Timothy McNulty:

Yeah.

Kevin Kosar:

And Brooks, unlike so many other Southern representatives, was progressive on racial issues and had a big role in pushing forward civil rights acts. Is that right?

Timothy McNulty:

That's the Civil Rights Act of 1964 and others. He was very definite about that. He made sure that the Black citizens in his district were equally represented, and he refused to sign on to any pronouncements from other Southern Democrats who were for segregation. He was one of the few that refused to sign those kind of pronouncements. His district was one that encompassed everything from a town where Blacks were not welcome after dark to union leaders in Louisiana and in Southeast Texas and Beaumont, where they were in charge of a lot of the companies and the unions. So he was able to kind of meld all these different groups together by their self-interest.

Kevin Kosar:

Yes, yes. It's a remarkable thing, considering how intense the backlash towards desegregation was, to be able to keep that balance and fend off any primary challengers who might go after him. That was quite something.

Timothy McNulty:

He learned a lot in the Marines. He learned a lot in his first decade as a congressman. He was also in the Texas state legislature. Sam Rayburn was a mentor, and Rayburn talked about [how] the first ten years in Congress, you're kind of learning how things work. Then after that you become effective. And Brooks paid attention to his mentor. He also was a friend on the Senate side of Lyndon Johnson, and Johnson also as president. They were very close. So he kind of put together things from his life, both in the Marines and the state legislature, and then in his early days in Congress, to become very effective. And it was also, by the way, across the aisle. It wasn't as if they were saying, “I'm only going to work on Democratic issues.” He had strong friends on both sides. For instance, Bob Dole one time was meeting with the Democratic leaders in the Senate and the House. And they made an agreement—which is the art of compromise that Congress is lacking now—but they made an agreement, and Dole had told the Democratic leaders that he wanted it in writing. And they asked, “Well, you want a letter from Brooks?” And Dole said, “No, I don't need it from Brooks. His word is good.” So that's the way he was considered on the Hill.

Kevin Kosar:

Yeah. That gets to an interesting insight that your book offers on how to be an effective politician. One thing, certainly, that Brooks had was doggedness. The book relates the story of how he wanted, back when he was a state legislator, a community college to become a full-blown university. He had to fight and fight and bargain, and the bill died at least one time, if not more. And he kept at it until he got it done.

Another thing that he seemed to really get was that, yes, politics is about principles, but it is about people, trust, and wants. In his career in the military, you describe how Brooks positioned himself as a guy who was able to procure things that were wanted—like boots or whiskey or socks—and was able to build support amongst those he served with. Is that right?

Timothy McNulty:

Absolutely. He learned that you appeal to people on what they need. So whether it was—as you said, one time, he traded things that another unit might have needed for fifty pairs of boots that his company needed. Or, a shipment of whiskey came in on a ship, not identified as whiskey, but he was able to figure out how to get that on land and on the islands in the South Pacific, and made good use of it. And it wasn't for himself. He was doing it and learning how to manage things for people's own self-interests. Part of his appeal was that it wasn’t like he was eager to make money or to get higher office. He was able to just say, “Here's what we need,” and figure out how to negotiate it. And the idea of compromise, he recognized—I think what Sam Rayburn and Lyndon Johnson also realized—that in order to be effective, you have to be willing to compromise.

Kevin Kosar:

That's right. Speaking of Rayburn, who was speaker of the House for a very long time, and Lyndon Johnson, who became majority leader in the Senate before vice president and president: Brooks spent time with them, which had the advantage of not only conferring some of their power upon him—the fact that these two fellow Texans would listen to Brooks about certain things—but also he learned process. That's another key aspect of being an effective legislator: figuring out how the wheels turn on Capitol Hill. Is that right?

Timothy McNulty:

Absolutely. He realized that when he was— For instance, there was a sign, as simple a thing as a sign on a reservoir in Texas, and he wanted it named after Rayburn with Rayburn's full name. And they just said, “No, we can't do that. It's different than the rest of them.” And Brooks was able to say, “Here's what I'm going to do.” He detailed who he was going to talk to, what was going to happen, when they were going to send that bill to President Kennedy, when Kennedy was going to sign it and come back to Brooks. So he recognized that, and so did a lot of the other people who were bureaucrats or others that wanted to do things only one way. He recognized that the more you understood how Congress worked, the more effective you would be.

Some of his accomplishments were not flashy. They weren't Newt Gingrich trying to get up and get a name for himself, speaking to an empty House of Representatives just so that he could have some TV time. But Brooks was able to look at things and say, “What do people need?” So he went after things as mundane as lightbulbs. Lightbulbs are something that's so commonplace. Yet he realized at some point that the way they were made was to absolutely burn out quickly. So he went to the GE and said, “Here's what you could do. The technology is available.” He also did other infrastructure products like IBM and said, “Why are we leasing computers at this enormous cost? Why don't we buy them?” And so he did. The same thing with Westinghouse or with the Boeing and the FAA. Those kind of changes—whether it was airline safety or other products—he said, “Why don't we do it? It makes more sense for the government to be paying.”

That's why he was also feared: when people went up to his committee, then he would ask very blunt questions. One of the— Afterwards he told some of his staff, because they heard these heads of businesses saying, “Brooks, that S.O.B.,” and Brooks to his staff just smiled and he says, “Well, what they mean is Sweet Old Brooks.”

Kevin Kosar:

Yes, yes. The lightbulb incident was a good one. I'll give listeners a preview. Essentially, you had three or four firms that were making lightbulbs in the country at that time, and they created a planned obsolescence. Bulbs would only burn for 750 hours and then would go kaput. There was no reason that it had to be that way; it just encouraged more people to spend more money on lightbulbs. Brooks called them out on it, and they didn't have a defensible answer. By training that attention upon them—it was an element of just shaming them into improving their behavior.

My next question: Brooks had a long career, and he did an enormous amount during that time on Capitol Hill. In your estimate, what were his greatest legislative achievements, if you could just pick a couple?

Timothy McNulty:

Well, I think his involvement with the Civil Rights Act, as I mentioned before, that certainly was something that he would be very proud of. Not signing the Southern Manifesto that would encourage segregation—that took courage, and he had that. Like I said, [he was involved with] large-scale infrastructure projects in Beaumont and elsewhere in Southeastern Texas. He also was the one vote that allowed the International Space Station to continue. It came down to one single vote, and Brooks casted to continue the space station.

He also had some controversy when he was on the Judiciary Committee and ultimately became chairman of it. During the Nixon hearings, he told his fellow legislators that the only decision that they really had to make with Nixon was whether to shoot him or hang him. There was another time when he was talking to people in his district. In the Marine Corps, his last station was in China, because they were going to invade Japan, and they knew there were going to be enormous casualties. So he was very much for the dropping of the atomic bombs on Hiroshima and Nagasaki. During this one press conference, he said, “Truman should have dropped three bombs.” It was controversial. There was a TV crew, but they had just turned off the camera, to his aides' great relief. But he was insistent: he said it saved tens of thousands of American lives and he was for it.

So he didn't shy from controversy. When Oliver North testified— Now, Oliver North had become symbolic of rectitude, and he was being questioned and all that by other members of the committee. Then, when it came time for Brooks's question, he laid into him. He also had been a Marine colonel, and he wasn't going to take any guff or false modesty. So he laid into North. It was not until then that it turned—that a lot of the other members of Congress began to question whether North was actually as patriotic as he wanted to paint himself.

Kevin Kosar:

Yes. Brooks was remarkable in so many ways. As we noted earlier, he was a guy who very much believed in delivering tangible benefits to his voters and to the American public generally. But that doesn't mean he was a big-spending liberal. In fact, much of his career he spent acting as a watchdog over government spending. That is unusual today. We too often hear conversations where a member is described as a liberal, and they just don't care about waste, fraud, and abuse, or they're a tightwad legislator who doesn’t want to spend anything on the war or anything. Brooks showed that you could do both, and you could do them well.

I want to circle back for my last question on the issue of Brooks’s meanness within Congress. Clearly, he was well liked, both by voters and many other members. He was also feared, particularly by people in the executive branch who ended up in his crosshairs. Was his meanness different from the type of meanness that we see in Congress today?

Timothy McNulty:

Yeah. When we were trying to decide on the title and subtitle of the book, it was a question that we had to address. When we think of meanness today, it's very personal—again, Newt Gingrich kind of attacks on people. Another word that we questioned whether we should use: the toughest man in Congress, because that was really his reputation. Even though they called him the meanest man, the intention was to say, he is not going to take guff from anybody, and he will question people. He will make sure that other legislators are held to account. So it’s a different kind of context that people use the word now.

Kevin Kosar:

Yes, his meanness seemed to be closely related to the issue of government accountability, not as a gratuitous vehicle for raising one's own brand. Interestingly enough, and I shall close with this, as a legislator, he frequently did not try to draw media attention. Rather, he kept stuff that he was working on low-salience until he felt that he needed some outside attention that would perhaps help him get something over the line.

Timothy McNulty:

Yep. You're absolutely right. That's exactly a good way of describing it.

Kevin Kosar:

Timothy J. McNulty, thank you for telling us about the meanest man in Congress, who is also one of the most consequential legislators in our republic's history.

Timothy McNulty:

Thank you very much.

Kevin Kosar:

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