Understanding Congress

The topic of this episode is, “What role should Congress have in foreign affairs?”

My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft.

Kevin Kosar:

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

Welcome to the podcast.

Alissa Ardito:

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

Kevin Kosar:

Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs?

Alissa Ardito:

Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia.

And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers.

Kevin Kosar:

Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?

Alissa Ardito:

Yes, there actually is a lot that Congress can do. Even the statutes that allocate powers to Congress—they're implementing those broader textual powers in very specific ways to effectuate them. Even the War Powers Resolution, depending on one's views—one could argue it's unconstitutional, but I think the consensus is that they are. But, moving along, Congress has informal powers it can use. Again, it can pass resolutions—Senator Graham did one about the sale of certain jets to Ukraine. It can use ceremonial functions such as hosting dignitaries. Also, holding hearings are specific ways in which, through exercising oversight, Congress can be influential and can raise the salience of certain issues.

And I think, not to take too much of a contemporary example, but the various funding bills Congress has passed on a bipartisan basis on aid to Ukraine are examples of—I mean, it's a formal power in that it's grounded in the Constitution and the Appropriations Clause, but it also acts in a way to give Congress more influence as well as authority than you might otherwise think. It's not following in the wake of the president. It's actually taking the lead in many ways more recently, which is unusual.

Kevin Kosar:

Yes. I think there's often a habit to try to allow the executive to be the sole voice of policy in international affairs, but there is absolutely nothing to stop any single member of Congress or an entire political party to simply assert themselves on an issue. If you're a foreign head of state and you realize the president's saying one thing and members of Congress are saying another, that has impact. That has effect.

Now, let me move on to the next question. I want to go back to the Constitution. When the Founders bargained it out, they took away many traditional executive authorities over foreign policy from our executive and assigned it to Congress. Examples include the ability to independently raise funds, as you mentioned, and to make treaties. Why did they do this? This was in such distinction to the old practices of Europe, for example.

Alissa Ardito:

That's such a great question. They did this for a couple reasons. One way to think about it is, it looks as though they're pulling powers away from an executive. But you actually had examples of monarchs who, by accident of history, exercised what we think of as executive authority, but there's a historical background and then there's a functional reason. Many powers kings exercised based on prerogative were sometimes also legislative in nature. So, it gets really confusing because we're layering old ideas about mixed government, which go back to Polybius and ancient Rome, which divides the institutions of government based on class—are they representing the few, the many, [or] the one? Then around the time of the English Civil War, you get this functional separation—that it's not, “Who in society's being represented in this body?,” it's, “What's that institution doing?”

The fulcrum of this really is the framing of the Constitution, because they're heirs of both these ways of thinking. But back to initial ideas—they found that they had the benefit of, as Jack Rakove often points out, 10 years or more dealing with state constitutions. And the state constitutions really exemplified pulling away any authority from the executive. They were really focused on legislative government and disempowering the executive. They found that these constitutions didn't work. So they realized, no, we've got to reallocate things yet again and move back to giving our executives some power, but not too much. They decide to split it, which is the great innovation. It's starting from almost a tabula rasa and saying, “How can we allocate this power more effectively?”

What I find fascinating is, throughout the long summer, the Senate really was going to be the preserve of a lot of the foreign affairs powers, and was actually going to have the authority to negotiate treaties, as well as have a say in ratifying them. It was only towards the very end that they pulled some of that out and gave it to the executive, and then kept some in the Senate. Because we're so inured to thinking of—by nature and by, as Harvey Mansfield has said, the informal powers the president gets for a variety of reasons—we always think of it as pulling away. But in some ways, in the Framing, we got a pulling away of powers from the legislature in Congress over to the president, as a reaction against what they thought was some short-term thinking in the state constitutions.

More to what you were speaking to, some of the key—not just powers bestowed on Congress as well as the power to declare war and the Senate treaties—but also fundamental in the British experience were the Mutiny Acts that evolved after the Bill of Rights and the Acts of Settlement. But this was before the Act of Settlement. This was [1689], where Parliament every year starts to vote on the military and supplies to the military to prevent the king from supporting and maintaining a standing army during peacetime. So, the idea that the legislature—the will of the people—have a say in how much an army or military is funded, as well as other aspects of military governance—you can't have martial law during peace time, for example. These are bits and pieces of the British experience that are very influential when it comes to shaping these broad contours of powers between two institutions that they're thinking of.

Kevin Kosar:

Yeah. You mentioned the British experience. I'm reminded of the fact that in the Declaration of Independence, we have lines that reference bad American colonist experiences involving military imposed against them. They were supposed to be part of the empire, yet the executive is using military force against them. So, there's complaints about, the "King has affected to render the military independent of and superior to the civil power... the quartering of large bodies of armed troops among us... the cutting off of our trade with all parts of the world," et cetera. And you look at our Constitution, and you could see those specific gripes actually responded to and corrected in the text of the Constitution, because they didn't want to see a repeat of that movie.

Alissa Ardito:

Exactly. What's also interesting is that the British monarch's powers to wage war, to conduct war, conclude peace, as well as negotiate treaties, were all considered prerogative powers. Some people loosely use prerogative today with respect to the president. That's not necessarily historically accurate, because the prerogative, as Maitland or Dicey said, was an accumulation of powers, of accessory powers that adhered to the very person of the British monarchy. It was very feudal. And Wilson and Madison, when they start to think about, “Well, what really are we talking about when we're discussing the treaty power?” “It's a prerogative power.” “How does that help us?” they say, “Well, you know what, it's actually legislative,”—which is the influence of eighteenth-century Vattel, and the idea of international law. Well, that's a legislative power.

So that's why they then thought about putting this in the Senate, and the Senate still has its two thirds ratification power. So it's again this wonderful labyrinthine process, by the way, in which some of these powers slither about and move in and out of conversation and are transmitted across time. And then they end up specifically where they are in our Constitution, which I think of as almost like a memory palace, as the classical rhetoricians would say, with houses of lots of rooms and lots of memories in them as well.

Kevin Kosar:

Absolutely. Well, the debate over what authority a legislature or popular assemblies should have over foreign affairs goes way back past the American founding, doesn't it?

Alissa Ardito:

Yes, it does. We're most familiar with the great debates around the time of and after the English Civil War, those fundamental debates that become part of the British Constitution. But it goes back even earlier than that. You find it even in Thucydides, for instance, about the Sicilian expedition. So, this idea has moved back, about where does foreign policy fall. By tradition we think it's always been the preserve of monarchies, but that's not actually the case. We've had city-states and republican—again, small ‘r,’ meaning popular—forms of government for a long period of time.

One of the places in which this was debated perhaps most prominently before you get to the aftermath of the English Civil War was in the Renaissance and the early modern period. Specifically, Machiavelli is someone who thought about this quite a great deal, as the Florentines did in that era. The problem was that foreign affairs were conducted by rotating groups of executives; it was all by committee structure. People were involved because there was no sense of, well, the mayor of the city, or [in] principalities it was different—but there was no sense that one person needed to conduct foreign policy. The problem was, they started to find out—and the system worked, it worked well. Venice endured until 1807, so there's no reason to believe this can't work. But the problem these city-states found was that they were really slow and they couldn't come to decisions quickly enough. That had not been a problem in the fourteenth century or in the fifteenth, even. In the sixteenth, it starts to become a huge problem. They're not able to act effectively and expeditiously, and if they don't learn how to do so, they're going to be conquered. Now, the conventional wisdom is, and even was at that time, “Well, it's the era of monarchies. Our era is over.” But then there were thinkers, Machiavelli among them, who look back to the Roman Senate—because Rome was a great example of a decisive, expansionist republic—to try to figure out, should people be involved? How much popular ratification and popular debate should we have? And this goes back and forth, because you see it from de Tocqueville, who writes and says, “Foreign policy is one of the areas where people are least able to offer advice and public wisdom, should least enter because it's least valuable,” to Morgenthau saying, “All the attributes of a successful foreign policy are precisely those”—I'm really paraphrasing generously, expansively on his wonderful words—“that do not [inaudible] by public input, because you have to have a course that will endure over years instead of [the] strategy [of] appealing to the fickle nature of the popular will—it's just not going to work.” That's so often used as a reason to cut people out entirely. So, to come up with ways and devices, because popular will does ensure a certain amount of accountability, is one of the great challenges of institutional design.

Kevin Kosar:

Yeah. You hit on something that feels to me like a fundamental conundrum about self-government and foreign policy. On the one hand, foreign policy is exceedingly complex, and it inevitably involves negotiations among nations that require all sorts of interpersonal manipulation and gamesmanship. I mean, you read Kissinger's memoirs and things like that. The amount of stroking and fooling and blustering that goes on—it's an extremely complicated game played by a small number of representatives of each nation. So, the nature of the exercise to some degree lends itself to, "Just let the executive do it." On the other hand, if we're going to be a representative democracy, then how is it that we could have representative self-government if we simply take an entire realm of policy off the table and say, “The legislature has no business talking about this because they don't know foreign affairs”? That seems really problematic, not least because defining the boundaries of foreign affairs—Does it include trade? Does it include this? Does it include that?—gets extraordinarily messy. Executives, I should also mention, sometimes make mistakes in diplomacy and in decisions of war and power. What do you think?

Alissa Ardito:

I think that's true. Actually, Machiavelli would echo this in one of the chapters of the Discourses, which is his great book on republics and the institutional design of republics. He says, “Yeah, people make huge mistakes, especially in foreign policy. They love to go to war. They love military adventurism. They can't really be trusted.” But then he modifies what he's saying. He goes, “But princes can't be trusted either. They're prone to the same mistakes, and there's no remedy for that other than steel.” When it comes to the populace or the common man—what we would call now the median voter—you could talk to them. People after a while aren't fooled in things, and they go back and they change their minds, or reason appeals to the majority.

So, that's a reason to keep some public accountability mechanism afterwards, which is like a checking function. But maybe people should be involved in some way, or their representatives, in formulation of policy. That's where Machiavelli has his own solution, with the Senate and popular assemblies ratifying especially a declaration of war. And I think the United States developed a nice method of managing this through the Senate and the Committee on Foreign Relations. That was one of the original standing committees in 1816. That's how you get constitutionally grounded—not the committee structure, I mean, but advise and consent—role for, if not a broad public plebiscite on certain foreign policy questions, but you have the popular branch, you have a level of expertise, which I know is a tricky word to say, but familiarity with the issues, with the formulation of policy that develops over time. And the Senate allows that through the six year terms. It's hard to think of representatives who have the stature of—let's look at a Cabot Lodge, however you felt about the Treaty of Versailles. Or a Lugar, or a Vandenberg, or a Vannette, or a Walter George, or a Fulbright. You have senators who achieve a certain preeminence and a knowledge of foreign policy.

And the Senate was known as a graveyard of treaties unless the president took the time to consult with members of that committee. The argument goes, Wilson might not have had some of the challenges he had with the Treaty of Versailles, and the League of Nations, had he involved the committee earlier. I don't mean that always works. I think there are broader issues with executive agreements rather than treaties, and it could be the heyday of certain committees have ended. But I think it's fascinating to observe the way in which that committee evolved to implement some of the Constitution's allocations of power in a way that was successful in certain periods. Perhaps if you're looking back at NATO expansion, even in the ’90s, you could say the committee has been successful in performing its function.

Kevin Kosar:

I should underscore something you pointed out, which is that while it's easy to think of a president as longer in the seat and better equipped with all the advisors around him or her than somebody who's been elected—a former used car salesman or small town lawyer—history has shown that we have senators, we have members of the House, who get on foreign affairs committees and they stay there for a very long time—decades—far longer than any president may serve. And as such, they have a depth of knowledge and a cred in overseas nations that means something. It adds a steadiness to foreign policy.

I'll also just add that it seems to me that foreign policy by its very nature has to have popular consent, because inevitably it's going to involve the wellbeing and lives of the public—whether it's trade, which can affect...

The subject of this episode is, “What are the goals of congressional budgeting?”

My guest is Paul Winfree. He is a distinguished fellow in economic policy and public leadership at the Heritage Foundation. Importantly for today’s discussion, Paul has a great deal of knowledge about congressional budgeting. He has had stints both in the White House and in the Senate, where he worked on budgeting firsthand. Paul also is the author of the book The History (and Future) of the Budget Process in the United States: Budget by Fire (Palgrave Macmillan, 2019). So I’m very excited to be here with Paul Winfree.

Kevin Kosar:

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

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

Paul, welcome to the podcast.

Paul Winfree:

Thanks so much, Kevin. Really happy to be speaking with you today.

Kevin Kosar:

My sense is that if we asked Americans, “What are the goals of budget policy?” they likely would say something along the lines of, “It involves the government figuring out what to spend money on—like defense, for example—and how to pay for this spending. Budget balance is the goal of budgeting.” While that's true, what your fine book shows is that our government has had a variety of goals for budgeting over the past two centuries, correct?

Paul Winfree:

That's exactly right. One of the reasons why I wrote this book in the first place was that there's this narrative amongst budget experts in Washington, DC, these days that the budget process is broken. What I wanted to do is start to unwind that and ask both, "Well, why is the budget process broken?” but also, “How did we get to where we are today?" It might be my own bias on how I approach problems, but one of the things that helps me understand current mechanisms is also understanding how we got to those current mechanisms, rather than approaching the current problem sets as if they happened exogenously and were not predetermined by other things that have happened throughout our history.

So, what I do in this book is go back all the way to the very beginning and start with colonial America, and then walk us up to today. What you find throughout our history, in looking at both budget policy but also the formation of economic policy more broadly, is that there were lots of different goals, from debt eradication, to sending signals to European debt markets that we were a viable nation that they should take seriously, to macroeconomic management. The goals today are in some ways different than the goals 250 years ago, but in other ways similar. I think we'll probably talk about that a little bit in the next half hour.

Kevin Kosar:

All right. Well, let's start at the very beginning, which, as a wise person once sang, is a very good place to start. When the founders bargained out the U.S. Constitution, they had objectives for budgeting, didn't they?

Paul Winfree:

That's right. The founding generation was very practical in a sense, and they had to be. They were involved at the beginning of a new country, and like many founders of companies today, they didn't have a lot of time to prove to the world that their model was viable. Therefore, they tried some things such as the Articles of Confederation, which permitted the federal government to borrow money. But since the Articles didn't provide Congress with the power to raise revenue, they would apportion the cost of loans to the states based on their property values. This implicitly gave the states a veto over the terms of the loan agreements. Therefore, as a practical matter, you had officers of the federal government who had very limited power in negotiating the terms of these loans in Europe on behalf of the states, during a period when it took a typical mail ship one month to cross the Atlantic. Often, the state legislatures would have actually adjourned for the season by the time that the details of these agreements came back home for ratification. It's no wonder that James Madison wrote his friend Edmund Randolph saying that this created a bit of a struggle.

These first trials, though, were a reaction to the world that they had been attached to. This is partially a level of the perceived tyranny of the British crown. The press at the time had done a really good job fostering such sentiment. It was also partially a derivative of colonial governing bodies, cultures, and practical issues like physical distance and poor internal infrastructure that had fostered this decentralized mindset. But they had a serious problem, ultimately, with securing credit and managing debt payments. And to get other nations to take the newly created United States seriously, which was a prerequisite to life, liberty, the pursuit of happiness, and all of that, they needed to get their finances in order. So they changed things up rather quickly. As Alexander Hamilton famously wrote, "Debt…was the price of liberty,” and more important than any natural resource in maintaining the nation's security. Interestingly, and contrary to what you may hear from many protectionists today, Hamilton, the practical treasury secretary, preferred relatively modest and flat tariffs so as not to spook international markets and get into trading wars for this very reason.

But there was another goal that I talk about less in my book that I've become very persuaded by, primarily by the work of a guy at the University of Maryland named John Wallis, among others: that the avoidance of public corruption was also important for the founding, and also subsequent generations. This is because new Americans had witnessed instances where Parliament had provided special benefits to their political coalition, such as limiting market access through protected economic status in exchange for political support. This systemic corruption was in a sense intolerable, and would ultimately influence many of the budgeting reforms over our history. I think that this is something that may not make Americans different, but it is a characteristic of Americans. That is, for the entire existence of our country, there has generally been this populist intolerance to public corruption in a way that you don't see in other places such as China or Russia today. Public corruption seems to challenge the cultural notions of fairness and threaten virtues that are important to Americans, like liberty and freedom. This is also something that they would have learned from Adam Smith, who wrote about this very issue in particular in The Wealth of Nations, first published in 1776, that we know influenced the founding generation.

Kevin Kosar:

When I think about our Constitution, you won't find a section that says, "Here is the budget process and here are the objectives." Yet built into there, it seems to me, there's at least one objective, which is that the executive should not have independent authority to raise revenue, because the bad old kings of Europe did that and often started wars. I guess a second thing that's in there is the idea of revenue-raising—it should be done by the people in the government closest to the people. Therefore, revenue bills are supposed to start in the House, right?

Paul Winfree:

That's right. That was something that was learned and ultimately borrowed from the way that Parliament is structured in the British government. One of the issues that came about during the English Civil War was the king, King Charles at the time, was unilaterally executing his power as the monarch to raise taxes based on this threat of war. Ultimately, that upset people, led in part to the English Civil War. So when they went to go about putting things back together again during the Glorious Revolution, they made sure that essentially two things happened. The first thing that happened is that the Parliament had unilateral control over raising and lowering revenues—controlling revenues. The second thing is that they put that power with the House of Commons. That was adopted by the British colonists when they came to America, and ultimately was probably considered a truth when they went to go put together the Constitution. Of course this is the way we go about doing things.

Kevin, I'm no expert in British history, and especially British parliamentary history. But one of the other interesting things that seems to be an American institution is this one of advice and consent, which actually also has to do with budgeting powers. One of the things that you saw within the colonial governments was this issue where oftentimes the governor, who was a royal appointee, would want to do something. And the local legislatures, made up of British, directly elected representatives within the British colonies, would say, "Okay, we will support you in going about and doing something. We will raise revenue to go do that thing. But at the end of the day, we want to make sure that we have some say in who's ultimately going to be appointed to do whatever it is that you want to do." Hence, advice and consent. So again, they had this long, long history of this dynamic, that ultimately when they went to go put things together in the Constitution were probably just things that they took for granted. Well, of course this is the way that we go about doing things.

Kevin Kosar:

There was an element of a principal agent-relationship with the Congress, the elected officials being the principal, and the executive being the agent who is to carry out what the principals wanted. I should also mention before I move on to my next question that when it comes to raising revenue, Congress has to do it every year. You can't just say, "We're going to raise this revenue, and it's going to be spent this particular way in appropriations bills for the next hundred years." So they have go back and do this democratic exercise each year.

As America grew across the North American continent over the nineteenth century and had to contend with the Civil War and all sorts of other stuff, just for the sake of helping viewers get a sense of the breadth, how did the nation's budget objectives change?

Paul Winfree:

Well, now we're going to begin talking about one of my favorite periods in history, so you may have to bear with me here for a moment. During and immediately after the war, this objective transitions from becoming a viable nation to staying viable. And this wasn't so easy. The country's finances during the Civil War were often overlooked, which is understandable, as you mentioned, given the turbulence that was going on during the period. But the country didn't have sound financial footing heading into the war. In 1857, the federal government had reduced tariff rates at the same time that the country had to contend with this recession. What Congress did to deal with this is that they authorized a series of loans, but the government had a difficult time securing them because President Buchanan’s secretary of the treasury, a guy named Howell Cobb, was viewed as a Southern sympathizer. So in essence here, banks thought that if they gave him the money, then Cobb would run off with it. And they weren't exactly wrong; Cobb was an advocate for secession. He would go on to become the president of the Confederate Provisional Congress.

So Congress dealt with the budget deficit by increasing tariffs, which ended up being prohibitively high and reduced tariff revenue—because this is where they were on the Laffer curve, so to speak—by about 40 percent. One of the things that you begin to see during this period is that protectionism and trade policy begins to increase the volatility in government revenues, which causes policymakers to start to look for other ways to get cash. And when the war begins in April of 1861, the federal government had already been using loans to pay for about three-quarters of its spending. But within days of Confederate artillery firing on Fort Sumter on April 12th, they would exhaust all of the revenue that they would've pulled over the course of the year, and they turned entirely to borrowing.

On July 4th, 1861, Congress meets in this special session to provide for Lincoln's request for 400,000 troops and $400 million, which is about $12 billion in today's money. This begins a series of financial innovations from greenbacks to the federal income tax that are used to fund the war effort. At the time, all of these things were considered temporary, but we think of these things today as essentially standard tools in public finance. During the decade of the 1850s, customs duties accounted for about nine of every ten cents that the government collected. But after the conclusion of the war in 1865, customs duties would never account for more than 60 percent of total revenue again. So you really start to see a shift in reliance away from tariffs. We can also look to the war effort for this creation of institutions that, again, we think of today as part of the normal process. This includes things like the IRS and also the committees on appropriations.

Two of the biggest financial heroes of the Civil War that I write about it little bit in the book were Lincoln's secretary of the treasury, Chase, and Thaddeus Stevens, who was the chairman of the Ways and Means Committee. Like so many of the war's heroes, like Grant and even Lincoln himself, this wasn't exactly predictable. One of Chase's friends would later write, and I'm just going to read this quote because it's so good: "Had Mr. Lincoln known of the war that would follow his inauguration, it is not likely that he would have selected a man so ignorant of finance." So this is who Lincoln is picking as his treasury secretary. In fact, Lincoln himself didn't like dealing with the financial aspects of the government. When visitors would come to the White House and ask him about these matters, he would say, "Go see Secretary Chase, for he is managing my finances."

But ultimately Chase and Stevens were successful. This is I think in part because they were friends before the war. It was their close relationship that helped them get done what needed to get done. (Chase, as you likely know as a native from Ohio, was also from Ohio.) I also think that their relative inexperience with the way the government finances were supposed to work allowed them to have an open mind about what needed to be done in order to essentially make the government's ends meet. It's not like they didn't use experts; that's not what I'm saying at all here. As a matter of fact, Chase had a friend, who I talk a little bit about in the book, who had been a banker before the war, who he employed at the Treasury Department literally to advise him on how finance worked. But what was required during the war was an innovative approach to a really, really difficult problem, and generally a time period. And that's what transpired, I think in part because innovation had been a normal part of the budget process all the way from the beginning.

Kevin Kosar:

In your book, you note that “between 1789 and 1932, the annual budget of the U.S. had been balanced 66 percent of the time, or 80 percent of the time when excluding periods of major wars and economic recessions." That is an impressive achievement. And again, it's not something that's stipulated in the Constitution. How did the country do that? How did the legislative branch and the executive get together and make that happen so consistently?

Paul Winfree:

It's a difficult question. I think that it had something to do with persistence, necessity, and luck. In 1883, William Holman, who was a progressive economist, wrote that “in the early years of our history there were high motives for frugal government…to present a contrast between a free people administering their own affairs and the impoverished governments of Europe." That was also the case with President Jackson, who had balanced the budget and paid off the national debt during his tenure—as a signal more than anything else.

Debt retirement was also generally seen as a core component of public finance. This wasn't a new thing. This was, again, something that was inherited going all the way back to David Hume, who saw debt as a form of regressive redistribution. The cycle went something like this: war necessitated government debt, which was purchased by the wealthy, and then taxes were raised on the most productive members of society to finance that debt. Hume called this “the great encouragement of a useless and inactive life."

This rationale was not all that different than the populist resentment towards war profiteering during the Civil War and World War I. In fact, socialists early in the twentieth century were against government debt for the very same reasons that were articulated by Hume. Debt was also seen as a form of corruption. It was empowering of the powerful and the well-connected. Finally, and this is a critical bit here, it's important to remember that the U.S. didn't become the world's producer of safe assets until after World War I, and whoever is the world's producer of safe assets ultimately benefits from having low debt costs. So before World War I, it was the UK; since World War I, it's been the U.S. But if the U.S. loses this status, I think the fiscal situation could get worse very quickly.

So it goes back to some of the old questions about politics, really. Conservatives generally have a good appreciation for how culture affects politics. And in the case of debt, culturally, philosophically, and practically, debt retirement was just something that you did. So all of those channels drove the politics of debt retirement....

The subject of this episode is, “What is a conference committee and why are they so rare today?”

My guest is Josh Ryan. He is an associate professor of political science at Utah State University. Josh studies Congress, the president, state legislatures and executives, as well as electoral institutions. Importantly for the purpose of this episode of Understanding Congress, Josh is the author of the book The Congressional Endgame: Interchamber Bargaining and Compromise (University of Chicago Press, 2018). This book examines conference committees and the other ways the two chambers of Congress come to an agreement—or not—on legislation.

Kevin Kosar:

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

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

Josh, welcome to the podcast.

Josh Ryan:

Thanks so much for having me.

Kevin Kosar:

Let's start very simply, Schoolhouse Rock! style. What is a conference committee?

Josh Ryan:

We think of Congress as one branch of government, and Congress is actually two different institutions. The House and the Senate are separated from each other. They have almost no control over what the other chamber does. They have their own legislators, obviously. They have their own procedures, their own norms, their own committees, their own ways of doing things. And when they write a bill, even if the House and the Senate generally agree on the parameters of the bill and what's going to be in the bill, because of all these differences, they usually write two different versions of a bill. So we can think of the House as developing some version of a bill to address some policy problem. Typically the Senate takes up legislation after the House, but not always. Senators are their own people and they like to do their own thing, and they typically change the House bill in some way. So even though the House and the Senate are supposed to kind of be working together, if the bill is anything more interesting or substantive than some trivial piece of legislation, we're going to end up with two different versions of the bill.

The Constitution requires that Congress can only send one version of the bill to the president, so the House and the Senate have to have some way of resolving their differences, of agreeing on the exact same language for a given bill. Historically, one of the main ways that they've come to an agreement is by using a conference committee. This is a temporary committee, so it's different than the standing committees in Congress, like the Agriculture Committee or the Armed Services Committee, which exist and are more or less permanent. The conference committee is ad hoc. It's created just to address the differences between the House and the Senate on a particular bill.

The House and the Senate will each designate conferees. These are individuals usually who serve on the standing committees which dealt with the bill. And those people will go to a conference where they sit down and they try to hash out the differences between the House and the Senate version. Once they've done that, the conference committee sends the bill back to both chambers, and both the House and the Senate then have to vote on the bill again. But importantly, they can't make changes to the bill at that point, and the House and the Senate have the exact same version of the bill, exactly the same words, etc. At that point, if they both approve the bill, the bill goes to the president.

Kevin Kosar:

Now, if I could just ask as a brief follow-up: one of the things you note in your book is that if you look to the Constitution to see what a conference committee is, how it's defined, and who's to be on it, you're not going to find it there. There's an element whenever it comes to a conference committee of kind of an adhocracy, where they are reinventing the wheel each time they put one of these together. Is that right?

Josh Ryan:

That's exactly right. And this is a little bit unusual. Many states use joint committees, that is, committees that are shared between the two chambers, but Congress doesn't work that way, and it really hasn't historically. The House and the Senate have found conference committees to be pretty effective, though. Almost all bills that end up in conference are eventually approved by the chambers and sent to the president. Something like 95 percent of bills that make it to conference end up going to the president's desk. So despite the fact that, as you said, it's ad hoc—every time they do it, it feels like they're reinventing the wheel—it actually works pretty well. And I think the House and the Senate believe it to be an efficient and good way of resolving their differences.

Kevin Kosar:

Perhaps the lack of constitutional prescription detail just creates the flexibility that you really need, ultimately, to get the right people in the room together and to have the flexibility to work things out.

So, conference committee, that's one way to deal with the issue of the House and the Senate both trying to legislate on the same subject, but ending up with two bills that are not identical. What are the other ways for the president to receive one piece of legislation rather than two pieces of paper?

Josh Ryan:

The most common alternative to conferencing, which the chambers are using more and more frequently nowadays, is what we refer to as amendment trading. Some people call it ping-ponging. You can think of the analogy of a ball bouncing back and forth across the table. The idea here is, rather than creating a committee, when they use amendment trading or ping-ponging, the House and the Senate simply amend the bill in some way and send it back to the other chamber. They amend the bill, hopefully moving it closer to the other chamber's version. The bill gets sent back to the other chamber again. They may amend the bill, moving it again closer to the other chamber's version. And they can do this a number of times, typically no more than three (though there are some exceptions to that). The idea is that they sequentially amend the bill to get it to a place where they can both approve it without changing it. So that's the main alternative to conferencing.

One of the things that people forget is [that] there is an alternative to avoid this entire process, which is, simply agree to accept the other chamber's bill without changing it. We actually see this, and I argue in my book that it's becoming more frequent because it offers a way out. If the Senate knows it's going to have difficulty getting to conference or getting agreement in conference or navigating the amendment trading process, they may just take the bill as is from the House. And the same is true with the House. This has happened a couple of times in the last few years, and it's a way of short-circuiting the process. The chamber that does this may not get everything they want, but it's probably going to be easier when they choose to do this. It's going to be easier for them than having to negotiate the bill again after going through the difficulty of passing it the first time.

Kevin Kosar:

I'm glad you mentioned that, because recently there was an interesting example of that, where the two chambers were grappling with the debt limit and the fact that the country was about to cross it. And if I recall, the way that played out was that the Senate ultimately passed a bill, and then the House voted upon a rule. That rule had a number of provisions, one of which said that the Senate bill on raising the debt limit shall be deemed as approved. The House just basically recognized that they didn't want to have to put their members out there voting on this, but they also didn't want to play amendment ping-pong, apparently. That's the way they got it done, and that's how the bill went to Biden's desk.

Josh Ryan:

Yeah, that's a really good example of how this works. Usually, in this whole process, it's the Senate that's the problem, at least recently. The Senate has a harder time doing all of these things. The leadership doesn't have as much control over procedures, as much control over the membership. We've had more narrow majorities, arguably, in the Senate than in the House. So typically, when it comes to post-passage bargaining, resolution conferencing, amendment trading, it's the Senate that's the fly in the ointment. Often, just as you said, the House has been put in the position of, we have to take the Senate bill or we're not going to get anything, because it can't go back to that chamber. We'll never get agreement.

Kevin Kosar:

Right. And just for listeners’ purposes, why is it that the Senate tends to be the fly in the ointment?

Josh Ryan:

Well, in the Senate it's just harder to get things done. The majority party doesn't have the same power that they do in the House. We're seeing a really good example of this today, which is, in the House today, even with the very narrow majority the Democrats have, they've mostly been able to do what they want. Not entirely, but they've been pretty effective. It hasn't been a situation in which the party is constantly losing floor votes or they're being split. The leadership in the House has a lot of tools to keep members in line. There tends to be less ideological disagreement within members in the House than there is in the Senate. In the Senate, everything's harder. And I haven't even mentioned the biggest difficulty the Senate has in getting things done, which is the filibuster and the necessity of invoking cloture on a lot of things. That just makes it hard to get things done in the Senate.

One of the things I could have mentioned about conferencing is [that] going to conference, setting that process up, that is a debatable motion in the Senate. That can be subject to a filibuster, which means you have to invoke cloture on that motion.

Kevin Kosar:

Yeah. One thing that really caught my eye in your book, which is quite excellent (and I encourage listeners to get a copy), is up until roughly 2013, the Senate had to engage in something like three separate steps, all of which were debatable, all of which would require getting 60 senators to say “yea,” just to do the conference process. That's to say nothing of actually completing the process and being happy with it. But just to get there! Incredible, absolutely incredible.

Josh Ryan:

Yeah, that's exactly right. And in fact, as you mentioned, in 2013, the Democrats, as part of their limited overhaul of the filibuster, actually collapsed those three motions into one motion with the idea that instead of having to invoke cloture three times, you could just do it once. Whether that's actually increased the likelihood of going to conference, I'm not sure. That's kind of an open area of research. It hasn't been that long since this reduction in debatable motions has been in place in the Senate. But I think that's a really interesting question that hopefully we can look into in the next couple of years and determine whether that's helped.

Kevin Kosar:

Yeah. The question of whether you take a bunch of smaller decisions and ball them together—does that create one high-stakes decision, or does that affect people's calculus when they're thinking about whether they're going to say “yea” or “nay”? That's very interesting. I'd love to see what the research shows on that.

I want to double back to amendment ping-pong. It's such a great image of little white balls flying between the two chambers, each with text inside of them. Who gets to play in this game? Do all members, all senators, all representatives, get to take a whack at a ping-pong ball, or does it not work like that?

Josh Ryan:

In theory, when the chambers use this ping-ponging process, we're basically just engaged in amending the bill on the floor. So in theory, it should look like any other amending process, more or less.

One of the arguments about why this process has been used more frequently is that it empowers the leadership. It makes the leadership stronger in the House and Senate, gives them more control over the process. And I think there's something to that. You can think about a conference committee, this committee that's set up to resolve differences on a bill. A conference committee is made up of members, usually from the standing committees who dealt with the bill, so committees of jurisdiction on a particular bill. Leadership doesn't have a big say in that, because you've just mostly got the committee chairs empowered, members of the standing committees empowered on a conference committee to rewrite the legislation in a way they see fit.

When we have amendment trading, because it's done on the floor, basically it's just a typical amending process in the House and the Senate. Who runs the show on the floor? Well, the party leadership and its deputies. So the idea is, the leadership has more control over the eventual outcome. They can direct members how to vote. They can direct members in terms of what the amendment should look like.

I think there's something to that, as I said. I'm not entirely sure it's all about the leadership, though. One thing we can think about is [that] the minority party, especially in the Senate, has been probably the cause of some of the reduction in conferencing because they've sought to block conference committees as a way of stalling the bill. But if you're a member of the minority party, why block legislation that's going to go to conference if it's going to go to the amendment trading process, which gives the party leadership more control over it? You might end up with more partisan legislation that way.

So I'm not entirely sure the story is all about the leadership, but I think they certainly have a role to play in that amendment trading or ping-ponging process.

Kevin Kosar:

Interesting. I was curious—is there an informal version of amendment ping-pong that goes on, where instead of having the House have to get together and vote on a new version of the bill with new amendments and send it over and hope it's okay and then have it come back, etc., they're just getting together and perhaps putting together drafts, things that are not legislation proper, but something that can be whacked in as a substitute if they get the sense that the other chamber is kosher with that?

Josh Ryan:

I think there's absolutely some of that going on. I think for both parties, and especially when you have unified control of the chambers—so right now you've got Democrats in both chambers trying to work together to resolve their differences. They don't want to have these fights on the floor. It's very inefficient. It takes a long time, it takes a lot of energy. They want to get the bill in a state that is as close to final as possible before they send it out in the world and take their chances with the amending process.

There is a big debate in the political science literature now more broadly about how much control the party leadership has relative to the standing committees. What we're seeing is [that] bills are increasingly being written in the leadership's office, not in the committee rooms. So the argument is, anything the leadership can do to exert more power over this process, exert more power over how the House and the Senate resolve their differences, is an indication of polarization and delegation by members to the party leadership.

On the other hand, even when they're writing bills within the speaker's office, who's doing the actual writing? It's probably members of the standing committee. They're in there meeting with the speaker, certainly, but the speaker or her deputies or the Senate majority leader don't have the knowledge or wherewithal on these specialized issues to actually write the bill themselves. They're still leaning quite heavily on committees.

So, Kevin, getting back to your question, a lot of this is about a tradeoff between who has the power to get these bills over the finish line. Is it the leadership or is it the committees—the committee chairs and the committee members?

Kevin Kosar:

In your book, you note that one of the longstanding conversations in political science and more generally on the issue of two chambers resolving their differences is the question, who wins? The listener of this podcast might be thinking to themselves, well, if the Senate is the place that it's really tougher to get agreement on, maybe that gives the Senate an advantage. The Senate is going to be the winner, because good luck getting up to sixty and all that sort of stuff.

You've crunched the numbers. You've done an immense amount of research on this. Who wins?

Josh Ryan:

Well, nowadays I think it probably mostly is the Senate. When I was writing the book and going through the literature and stuff, a lot of this “who wins” idea comes out of Congress in the 1960s and 1970s. At that point, there's quite a bit of literature that actually says that the House was more constrained. It was harder to get things through the House than the Senate. The House was the more moderate one; the Democratic Party, which controlled the House in that period of time, was split between conservative Democrats and more liberal Democrats, conservative Southern Democrats. So the House was the stumbling block. Now we think of the Senate as the stumbling block, given the sixty-vote threshold and the distribution of ideology within the Senate, and how difficult it is to get anything through the Senate. The Senate tends to be more moderate than the House, that is, the average bill outcome in the Senate moves closer to the center of the policy space than in the House, because of party control.

So there's nothing inherent, necessarily, about the Senate that makes it more difficult. It's just the circumstances today, in which we've got polarized chambers, we've got a very moderate Senate and a relatively more ideologically extreme House. So your logic, I think, was absolutely correct. It tends to be the chamber that is more constrained. It tends to be the chamber that's going to have a harder time. The Senate today can credibly look at the House and go, well, we're doing what we want because if we do what you want, it's going to lose. So you either get what we want or you get nothing. I think that's the way it works quite a bit today, but that wasn't always true, and it may not be true in the future either.

Kevin Kosar:

Before I get to my last question, let me just do one more...

The topic of this episode is, “What is the relationship between lobbyists and Congress?”

My guest is Timothy LaPira. He is a professor of political science at James Madison University and a faculty affiliate at the Center for Effective Lawmaking at the University of Virginia. Tim, I should add, is the lead editor of our volume Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform (University of Chicago Press, 2020). But even more relevant to the subject of this podcast episode is that Professor LaPira coauthored the book Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests. This makes him an especially apt person to answer the question for us, “What is the relationship between lobbyists and Congress?”

Kevin Kosar:

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

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

Tim, welcome to the podcast.

Timothy LaPira:

Thank you for having me. Glad to be here.

Kevin Kosar:

Let's start very simply, with the definition of a lobbyist. Now, under the First Amendment, anyone can petition the government for a redress of grievances, as the Constitution says. So plenty of people do talk to Congress, and the executive branch and judiciary, for that matter. In fact, in my job at a think tank, I am often asked to comment on bills or testify before Congress by congressional staff or even legislators who approach me. But I'm not a lobbyist. So what makes a lobbyist a lobbyist?

Timothy LaPira:

This is a great question. It's one that's often misunderstood. There's many definitions of what a lobbyist is, but I tend to think of—there's two ways to think about this. First, the more comprehensive, academic version of thinking about a lobbyist. It could go by the name of policy advocate, government relations professional, policy strategist, or something along those lines. These are people who make money to represent other people's interests. Those interests are typically going to be collected in organizations, but it's not just representing those interests in speaking. It's representing those interests in the policymaking process. There has to be a connection between the private sector and the government. So that's a very broad definition.

There is, further, a statutory definition, primarily through the Lobbying Disclosure Act of 1995, which has been updated a number of times. In that law, there's a three-test definition of what a lobbyist is. First, they have to earn money. There's a minimum amount of money that's frankly not all that much given the size of the lobbying industry. It's about $5,000 a month. Second, they have to contact more than one government official. The purpose of this in the law, of course, is not to simply capture everyone, as you suggested. They might want to call up their member of Congress and say, "Vote for the bill,” or “Vote against a nominee," or what have you. The third point of the definition is most critical and frankly controversial: the lobbyist must spend more than 20 percent of her time on lobbying services in a given three-month reporting period. Now, Senator Levin, when he originally wrote this law—the intent here was that he was hearing from a lot of CEOs from major corporations who said [that] frequently CEOs are picking up the phone and calling senators. It's a necessary part of their job, but they don't consider themselves lobbyists. And they're not, in many respects. So the idea was to try to capture, who are the day-to-day, routine, professional lobbyists? And this 20 percent definition was sort of picked out of thin air. If we think about it, one full day in a five-day week is 20 percent of your time. This was intended to not capture everybody in a given organization. The problem with that, as we'll see, is that a lobbyist could define the fact that they're spending 19 percent of their time on lobbying services and therefore not be a lobbyist, which is, frankly, pretty disingenuous.

Kevin Kosar:

Well, we have this category called lobbyists, but why do we have lobbyists? And are they helpful to Congress in any way, or are they just the bane of the legislative process?

Timothy LaPira:

That's a good question. I often pose this to my students to think about it this way. Are lobbyists good or bad for democracy? The answer is yes. It partly depends on what your perspective is. I don't like lobbyists who are taking on positions that I disagree with or oppose. I do like advocates who are speaking on my behalf and representing my own interests.

But the real answer to your question here is that every person has a set of political interests by nature. We all have jobs, pay taxes, use roads, are protected with the common defense, and whatnot. We all have an idiosyncratic set of interests. And what lobbyists are doing—I would say we all have interests that deserve a voice. That's the First Amendment part. And what lobbyists are doing is acting on our behalf to be our voice because we're busy with our day jobs, and we're busy raising kids and doing the shopping. We don't have time every day to walk up to Capitol Hill and communicate what our interests are.

So lobbyists act as our agents and as our representatives, much like a lawyer might act on our behalf in court. Lobbyists have highly specialized expertise as well. These are typically not just random people off the street who people would be willing to pay to represent their interests. They have technical policy knowledge. They have experience in and around decision-making venues like Congress or the White House. And they also have really dense professional networks, typically in and around the government, where they can pick up the phone and call somebody, and they'll call them back, or they know who to call with a particular question or who to communicate an interest to. So, in that sense, they're serving citizens as our representatives and our voice, and they're able to speak much better than we are, even on behalf of our own interests, because they know the backgrounds and they know who to talk to.

On Congress's side, or more generally in the government, including the executive, they're also useful because of their expertise. Members of Congress, in particular—the universe of problems that Congress could be asked to resolve is everything. Meaning that any given member of Congress can't possibly highly specialize the way that a lobbyist might. That means members of Congress are human, and they have some blind spots. They have some spaces where they don't know the ins and outs of a given problem or a solution or a proposed law. So it's useful to rely on experts, and those experts are often lobbyists—as well as think tank scholars and other folks in industry or in a social organization, what have you. So they are providing a good service to government.

Now, that's not to say that they're providing that service for free or without any prejudice. They are representing a particular perspective and a highly specialized interest in a fight that might be—All policy conflicts are, after all, conflicts. They are disagreements among several people or groups of people who see differently. So they're going to represent their own perspective. What that means is oftentimes there are some perspectives that are better represented than others. So when it comes to “Are lobbyists good or bad for democracy?” they're good because they do provide that service, but they're not always good because they're not always representing interests equally.

Kevin Kosar:

That's excellent, excellent. Thank you.

Now, let's talk about money. That word came up a short time ago. One of the common claims about lobbyists is that they buy legislators' votes. They say, "Hey, take this position, and we'll give a whole bunch of money to your campaign." Do legislators get bought? Is that a typical thing that happens in Washington, DC, or are lobbyists mostly giving money to legislators who already have positions that coincide or are the same as what the lobbyists want?

Timothy LaPira:

Yeah, this is a great question. It's also I think largely [mis]understood, in particular how we discuss the role of lobbyists and organized interests in the media, and frankly, the very politicians we're talking about as well. Lobbyists don't walk around the Capitol with bags of cash to hand out. That's not how it works, both literally or figuratively. Lobbyists are often going to be making campaign donations themselves and working with campaign strategists. They'll be offering advice to their clients and those who they represent about who might be best to give money to. The number one category of legislator or politician, by far, and it's not even close, it is to give money to people you already agree with. Senators, on average, are raising tens of millions of dollars for reelection. They're not going to remember one five thousand dollar check. Five thousand dollars might be a lot of money to you and me, but in the collective, it's going to get drowned out. If you think about how to give money strategically, you're going to give it to those who you agree with and who are most likely to get reelected, and on top of that, who are most likely to be sitting on the committees in Congress that are going to be most closely regulating your interests. The idea is if you have your friends there, that's a better starting position in a policy conflict than to try to play catch-up and try to explain your way out of a paper bag in order to get members of Congress to ostensibly change their mind on issues—which is exceedingly rare and difficult to do.

That's not to say that members of Congress and senators never changed their mind after meeting with a lobbyist. As I said before, lawmakers don't know everything. They can't be expected to know everything. And they're often going to be seeking out good expert and highly-specialized information from lobbyists, among others. Sometimes what they hear they're going to agree with, and they'll change their mind. It's going to be rare, I would say, when members of Congress are in those positions, to consider what the donors want first. When I've worked for members of Congress in the past, and we've had to respond to thorny or potentially risky policy questions, we go through a whole list of potential stakeholders or people who might have an interest in this policy we're making—starting with constituents and voters, and potential voters, as well as fellow partisans, party leaders, and major employers in my state or my district. If thinking through a problem while thinking through those stakeholders doesn't lead to a good answer, then I might be open to persuasion from a lobbyist. And not just a lobbyist, a lobbyist who has given me money. So, it's not that it never happens, but it's typically something that's relatively lower on the totem pole. Lobbyists and special interests on the outside are not typically giving money in order to anticipate changing somebody's mind in the future. It's much better to bet on somebody you already agree with, to make sure that they're in the right position to make decisions that are more likely than not going to satisfy you and your interests.

Kevin Kosar:

That brings to mind something that appears in your book on revolving door lobbying: this idea of lobbying being not just an offensive maneuver that an organized interest might pursue, but rather a defensive one, a form of insurance to prevent things from happening that you don't want to happen. Something that might be damaging to the industry or interest that you represent. In fact, I've read stories of lobbying firms getting involved in the primary process where candidates are trying to vie for the chance just to run for office. The lobbyist will get involved and try to back the person that they think has the attitudes and the views that best suit their clients. Right?

Timothy LaPira:

Absolutely. Right. In our book on revolving door lobbying, we try to imagine or rethink exactly what is this financial motivation to hire certain kinds of lobbyists. A typical story that has been dominant in the scholarly discussions in the past thirty or forty years is that organizations, particularly corporations that have plenty of cash to go around, will be hiring lobbyists as an investment. They're looking to invest in the policy process with the hopes that that investment will return something in the process. That could be a tax break; it could be reducing cost of regulation; it could be a grant, or even a program in which the federal government is a customer of this corporation. So there's any number of ways that private organizations are going to be extracting largesse out of government.

But the problem with that is that when we observe these things happening, tax breaks for a corporation or new trade rules for a certain product, we only look at the wins. We're not looking at the losses. More often than not, it is going to take ten, twenty years for a given law to become an idea before it becomes a law—if it ever does. What didn't make sense to us is why nowadays it's upwards of four billion dollars a year being spent on the lobbying industry. (Frankly, it's probably twice or three times that amount, but that's another conversation.) But why invest all this money in this process that's turning up not much of anything?

The analogy that we use in our book is that lobbyists themselves are almost like political insurance. I purchase every month a homeowner's insurance in case a tornado comes and hits my house. We've lived in this house for twelve years. We've never seen a tornado. It was still money well spent, because what if the earthquake happened, or what if the flood happened? So, we tried to think about this as, what is the motivation of hiring these expensive lobbyists whose track record is not necessarily great? Because, after all, you're going to have a conflict, you're going to have lobbyists on one side and lobbyists on the other. Even if somebody wins, the other half loses. If we think about lobbying instead as political insurance, then we're able to think about, what exactly are these risks that are being covered when you buy this insurance?

Two main ones that we came up with: one is political uncertainty. After the past few years in American politics, we can certainly see why political uncertainty is something very important. And especially coming from an organizational or corporate perspective where you have to draft a budget, come up with a plan, and hire employees, what CEOs and association leaders want most is some certainty, some way of being able to see into the future—particularly when it comes to, what is the policy landscape going to be for my industry or my interest? They want to have some sense of what's going on. Lobbyists who've worked inside the government are going to be able to offer better insight into what's going on, even if they're not in the room where the decision is being made. Why? Because they used to be in that room. They understand what the cost and benefit analyses are that party leaders and members of Congress and presidents are juggling with all these policy issues and policy conflicts that they come up with. So that's the first thing that they're buying: some insight into what might we be able to expect to happen. I'd rather get hit by a bad policy and know about it ahead of time. If I can't stop it, I'd at least like to know about it ahead of time, so I can plan.

The second major risk is, I don't know if you know this, Kevin, but policy is confusing. If you've ever tried to read a statute or read a law—you need expertise. There are a lot of landmines and unintended consequences and things that can't be anticipated, even when you're pushing for a policy that you want. So the second risk here is policy ambiguity. What it takes is some technical know-how, being able to speak the language of a particular policy domain—now-President Biden once suggested that he never “spoke healthcare.” Policy can be technical, so you might be hiring to cover that real risk of being caught blindsided in the minutia, jargon, and language of the policy process. All organizations have different risks they're going to be trying to cover, and whatever they come up with, the roster of lobbyists they come up with, we might think of as a tailored insurance plan for what it is that they are hoping to accomplish.

Kevin Kosar:

I mentioned your book with Herschel Thomas, which focuses on revolving door lobbying, and which I highly recommend to listeners of this podcast. Revolving door lobbying, which I didn't explain previously, at least not clearly, involves individuals working in Congress as staffers, and then becoming lobbyists, and then sometimes going back to working for Congress. This is the revolving door. Now, how widespread is that phenomenon? And if I may roll in an additional question with that, why do so many legislators and former Hill staffers become lobbyists?

Timothy LaPira:

Easy—money. It pays better. Not just better marginally. A typical staffer on the Hill might be able to expect an earning between three and six times what they earn on the Hill. Members of Congress—last week, we saw former Representative Filemon Vela getting a job at a major law firm, lobbying firm in Washington. Now that he's a partner at this major firm, he's going from earning a healthy sum compared to the most people—a member of Congress is going to earn about $175,000 a year—but that's going to be a drop in the bucket of what he's going to be able to earn as a partner at this major law firm.

So part of it is this motivation of earning more money, but that's not everything. What motivates people to go into Congress,...

The topic of this episode is, “What does the Congressional Budget Office do?”

My guest is Professor Philip Joyce. He is the senior associate dean at the University of Maryland School of Public Policy, where he also is a professor of public policy. There, Philip Joyce teaches and researches public budgeting, performance measurement, and intergovernmental relations. He's the author of many publications — far too many to recite, but I will mention one that is germane to today's podcast. Phil is the author of the book The Congressional Budget Office: Honest Numbers, Power, and Policymaking (2011), which makes him an ideal guest to answer the question, “What does the Congressional Budget Office do?”

Kevin Kosar:

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

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

Professor Joyce, welcome to the podcast.

Philip Joyce:

It's great to be with you.

Kevin Kosar:

Let's start simply. The Congressional Budget Office, AKA, “CBO.” When did Congress create it and why?

Philip Joyce:

CBO was created in 1974. You have to sort of go back in time if you can. Well, probably a lot of people can't go back that far in time that are listening to this podcast, but I can. As you recall, in 1974, at least early 1974, Richard Nixon was president. There was something that became referred to as the imperial presidency, and it essentially involved President Nixon being viewed at least by many people in the Congress as overstepping his bounds, doing things like withholding funds that the Congress had appropriated. So the Congress was trying to reassert its role in the budget process. And it did this by passing something called the Congressional Budget and Empowerment Control Act of 1974, which did basically three things. It created the budget committees; it created the budget resolution, which is the blueprint that the Congress establishes for the budget; and it created CBO.

Why did it create CBO? It created CBO in particular to provide the Congress with its own source of information on the budget and the economy. And why did it need to do that? Because the alternative was to rely on the Office of Management and Budget, which was attached to the president — and not just any president, but Richard Nixon. So the idea that the Congress was going to reassert its role in budgeting, but have to rely on Richard Nixon's OMB for information, just didn't make a lot of sense to a lot of people in the Congress.

The other thing I think it's important to note up front is that according to the law, this was all to be done on a nonpartisan basis, which means that CBO doesn't work for the party in control of the Congress. It works for the Congress as a whole, and tries very hard to make sure that it is responsive to both political parties.

Kevin Kosar:

Yes, I should elaborate a touch further for listeners who are not familiar with this period of time, the early ’70s. After being pushed around and eclipsed by a burgeoning executive branch, one that often didn't play straight and sometimes transcended the law in its activities, Congress decided to reassert itself. It took the Legislative Reference Service and beefed it up into the Congressional Research Service. They created the Office of Technology Assessment. It wrote a new law on budgeting, and of course it created Congressional Budget Office, all as part of a means for it to reassert itself as the first branch.

Now, you started to mention the nature of the agency as nonpartisan, which leads to the next question: The people who work at CBO, are they civil servants or political appointees, or do you have some of both?

Philip Joyce:

Well, this is really an interesting question, because they are not technically civil servants. In fact, this makes them different from many of the employees of the Government Accountability Office, who are actually federal civil servants. The way I describe CBO staff is that CBO staff are to the CBO director as congressional staff are to a member of Congress or a congressional committee. That is, the director of CBO is actually appointed by the Congress. The director of CBO has the power to hire and fire all CBO staff. So, theoretically, a new director of CBO could come in and wipe out the whole place and start over. Now, nobody has ever done that, because it's not in their interest to do that, because you'd be losing a lot of institutional knowledge. But the fact is, they are not technically civil servants. They have their own personnel system. But they very much behave as nonpartisan civil servants would behave. So I would say in that sense, you can think of them as being the equivalent of civil servants, but they're not technically civil servants.

Now, in terms of where they come from, it depends on where you look in CBO. I think there is an impression that CBO must be chock-full of economists, and that there's nobody else but economists in CBO. But that's not really true. It depends on where you look in CBO. The directors of CBO — there have been 10 of them — have almost exclusively been economists. Many of the people in CBO's policy divisions — these are divisions that are organized around long-term economic and budget issues — are PhD economists. But on the other hand, the Budget Analysis Division (and we'll talk more I think in a little while about what they do), which is the largest in CBO and the main division supporting the annual budget process — that's mostly made up of staff who have master's degrees in fields like public policy or public administration, or sometimes are people that have significant experience in the executive branch and then move to CBO.

Kevin Kosar:

Just to paint a contrast for our listeners, when you think about the individuals who staff, say, an individual member of the House of Representatives' personal office, those are folks who frequently get their jobs because they are members of the political party, and they are individuals who've worked on that member's campaign or perhaps worked in other congressional offices — frequently for a member of the same party. So their skillsets are much more in the political realm. CBO, that's not the basis for hiring people there, whether you are good at politics, right?

Philip Joyce:

Yeah, that's right. Well, not only that, it's probably a detriment if you're really good at politics. Or, I would say, to put it differently, if you have a sort of strong political bent — CBO is not the place to go if you're a policy advocate, because you're not really there to advocate policy. You're really there to think objectively about what the effects of policy are.

As you know, I wrote a book on CBO, and one of the interesting things that I found was that early on, when Alice Rivlin, who was the first director, who is a giant of public service, was setting the place up — and I think the way the place behaves today is very much still in her image — they had to make a decision early on: Were they going to accept references from members of Congress for CBO staff? Were they going to accept members of Congress basically saying, There's this great guy in my district or this great woman in my district, I think you should hire them? They decided that they were not going to refuse to accept those, but they also were not going to be driven by them. They wanted to communicate very clearly to the Congress that they got to decide who worked at CBO based on merit and qualifications, not based on whether they happen to be attached to some important member of Congress or not.

Kevin Kosar:

Yeah. I think that was a really prescient, smart insight by Alice Rivlin, because ultimately CBO is funded by Congress. And if the impression spreads in Congress that it's basically a tool of the majority, well, that pretty much throws into doubt anything that CBO publishes, and invites retribution. And I should add as little footnote, in the early 1990s, there was an accusation leveled at the Government Accountability Office, the General Accounting Office, that it was too close to the majority. The majority had long been Democrats. And when Republicans took the majority in 1994, GAO suffered a 25% budget cut. So, again, that was a very smart, foresighted move by Alice Rivlin.

Now, let’s get down to the nitty gritty. How does CBO interface with Congress and the budget process? What is its role or roles?

Philip Joyce:

Well, there are three main things I would point to. The first is that twice a year, CBO does a baseline economic and budget forecast. And what is that? It's a projection of what would happen if you let current laws continue. It's basically trying to give the Congress an idea of where they are starting from. Before they begin to make policy in a given Congress, what would happen if you did nothing, or what would happen if you just let current laws continue? That usually goes out 10 years, and it's based on an independent economic forecast that is done by CBO.

So, again, CBO is not going to just rely on the economic forecast that's coming out of a given administration, because that administration often has an incentive to say that whatever policies they're going to pursue are going to make the economy much better. And that's not really CBO's job. CBO's job is to basically say — What they tend to do is gravitate toward the average of what private sector economists would say is going to happen, without regard to saying that the president's policies are going to make things much better. And then once a year, actually, as a part of that general role, they do a long term, and when I say long term, I mean 30 to 40 year budget projection. That's important given the continued imbalance of revenues and spending, and given the fact that over time, that's likely to get worse. For example, the latest one of these showed the deficit growing to more than 200% of GDP by 2040. Now, that is not a prediction that that is going to happen. That is simply a projection that if you didn't do anything, then this is what we see as the future. And then it is up to the Congress to decide, do they want to do anything or not? For better or worse, the answer is often no, but what they are doing is they're taking that CBO analysis as a starting point.

The second big thing that CBO does is policy analyses of particular policies that are of long run interest to the Congress. So you can imagine, for example, something like, what would happen if we went to a single payer health system, or what is the future trajectory of the defense budget in terms of military preparedness? And they're answering questions like, what is the effect of those things on the budget and the economy? Another good example is climate change. You take climate change and you say, okay, based on what people say is going to happen or is likely to happen in climate change, what does that mean in terms of the future for the budget and the economy?

Then finally, and I'm leaving this for last, but I think it's probably the most important one, and it's the one that gets the most attention, is that CBO is required by law to do cost estimates of every bill that is reported out of a congressional committee. It does not do cost estimates of every bill that is introduced, because that is way too much work. And as you know, most of those bills don't go anywhere. But once a bill actually has enough traction that it has actually come out of a committee, the idea is that before the House or the Senate would vote on such a bill on the floor of House or the Senate, they ought to know how much someone thinks it's going to cost. And that someone is CBO.

Before CBO, it's not that there weren't any cost estimates, it's that there weren't any objective cost estimates. A committee that reported a bill out that thought that bill was the greatest thing since sliced bread would have every incentive to downplay the cost of that bill. And if you looked at the cost estimates coming out of the administration, lo and behold, if the administration liked an idea, it said the cost was low, and if it didn't like an idea, it said the cost was high. So the idea of having CBO do this is to have somebody that has no real dog in that fight giving some kind of an objective estimate of what the bill would cost.

Kevin Kosar:

Speaking of CBO's scoring of bills, it's sometimes controversial. For example, there's a bill that was scored recently, a purportedly postal reform bill to help the Postal Service’s finances. And there are folks carping at the calculations there of what the score is.

Why is it that CBO scores are sometimes controversial? And as a follow-up, has the method, whatever that is, for scoring — has it evolved over time, or is that just written down in formulaic or set in stone somewhere?

Philip Joyce:

Well, it's not that hard to understand why CBO’s cost estimates are controversial. People have strong views on these bills, and a CBO cost estimate can actually make it harder or easier to pass a bill. People complain about the CBO cost estimates — I equate it to a batter who strikes out who decides to blame the umpire. I mean, the umpire might be wrong, but also, you might have actually taken strike three. So, I think that you have to take with a grain of salt and you have to ask yourself the question, What's the motivation of the people who are criticizing CBO over a particular bill? Now, if they start to get into the specific methodology — there are certainly times when people have a point when they say, Look, CBO made the following assumptions and we think these assumptions are wrong, and we have data that backs up why we think that they're wrong. That to me is more credible than just effectively saying, They said this costs money and I don't think it does. Well, okay. But if you don't have any evidence, then basically you're just saying you didn't like the answer.

CBO cost assessments can be quite influential. When CBO said, for example, back in 1993, that the Clinton health plan would add to the deficit, when the Clinton administration said that it would cut the deficit — that was viewed as one of the main reasons that the Clinton health plan ended up not going anywhere. Now the truth is, given the magnitude of something like a healthcare reform, the difference between those two estimates was not actually that great. But it was very important politically that the administration had said, This is going to cut the deficit, and then CBO said, No, it's going to add to the deficit.

Now, on your question on the methodology, I think the methodology has changed over time in ways that make it more sophisticated. There are many more and many better models for projecting spending on things like Social Security, Medicare, farm programs, and the like, and CBO is always looking at how it can refine its estimating strategies. One specific thing that happened is that since 1995, CBO has actually provided estimates of the cost of legislation on state, local, and tribal governments under the Unfunded Mandates Reform Act.

The final thing I'll mention in terms of CBO’s methodology — and I don't think this is well understood — is that it is as important to CBO to be consistent as it is to be right, in the sense that they don't want to use different assumptions for scoring bills that basically try to do the same thing that are introduced by different people. They want to make it clear what their assumptions are, and then they want to make sure that when they are scoring bills, all bills that would affect healthcare, for example, that they're using a common set of assumptions so that they're not disadvantaging one bill versus another simply because they're using different assumptions.

Kevin Kosar:

Right. I've also heard from congressional staff that I've worked with that CBO scores can be doubted just because they can be difficult to understand. A score on a particular bill may only be two pages, and it has a whole bunch of numbers, but where those numbers came from is not immediately clear. But the other reason is that if it's a piece of legislation dealing with mandatory spending, it can have consequences for the probability of whether the legislation can make it through the House and the Senate. It's not just, oh, there's a bit of red ink attached to this proposal. It actually triggers parliamentary hurdles of sorts. Is that correct?

Philip Joyce:

Yes, it is correct. One of the things that CBO cost estimates do is that they can trigger, for example, in certain cases, and it's probably too arcane to go into all the specifics, but I think it's important to note that there are points of order that can be raised in both the House and the Senate that are triggered by the fact that a CBO cost estimate might cause a provision, for example, of the budget resolution to be exceeded. So it really is true that the Congress in many cases, for either political or procedural reasons, is trying to hit a particular target. And if it misses that target, even by a little bit, according to the CBO cost estimate, that can cause the bill to have to at a minimum go back and be redone.

Kevin Kosar:

That of course, unfortunately, would pull this third-party umpire-type figure, the CBO, into controversies, because it's viewed because of these parliamentary procedures that it's the CBO’s fault that the bill is going to face a higher climb through the legislature.

All right, one last question. CBO has been around for about 50 years. Does it need any alterations or updates?

Philip Joyce:

Well, it’s kind of useful to talk about a couple of things that CBO has been criticized for. First, there are some people, and I think this is sort of implied by the end of your last question, who think that CBO is not very transparent about how it does its estimates. Now, I think CBO is probably more transparent than a lot of people think that it is, but CBO has actually spent a lot more time and effort over I would say the last 10 years trying to be more transparent about its cost estimates, the methodology that goes into its cost estimates, and publishing separate reports that say, this is how we go about doing estimates for, for example, healthcare programs. So I think that's a place where CBO is continuing to work.

The second criticism is that CBO pays too much attention to costs and not enough to benefits. That...

The topic of this episode is, “Should we expand the membership of the House of Representatives?”

My guest is Yuval Levin, who is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. Dr. Levin is the founder and editor of the journal National Affairs, a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at the New York Times. And, particularly germane to the subject of today's discussion, Yuval recently coauthored a report on the topic of expanding the membership of the House of Representatives. You'll find a link to that report in the program notes.

Kevin Kosar:

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

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

Yuval, welcome to the podcast.

Yuval Levin:

Thank you very much for having me.

Kevin Kosar:

The founders set the number of senators at two per state, but they did not set a constitutional cap on the number of legislators in the House. Why is that?

Yuval Levin:

Well, the nature of the Congress came out of a very complicated set of compromises at the Constitutional Convention. If you look at James Madison's notes on the convention, well over half of the debate was actually about this question of how representation should work. And ultimately, in some obvious ways, the large states wanted to be represented by population, the small states wanted each state to have equal membership, and the decision was made, “Let's do both.” So the two houses do have intentionally very, very different forms of representation: for the states and for the people. The House of Representatives is meant to represent the public. And so each member represents roughly the same number of people. State delegations are based on the size of their populations. The difference between the two houses in that sense is very intentional, and intended to create these kind of overlapping majorities that include both forms of representation.

Kevin Kosar:

All right, so the Senate is supposed to represent the states; the House, the people. Now, we have 435 members in the House, and we've had 435 for a long time. When was that number set?

Yuval Levin:

The House of Representatives at first grew after every census. From the very beginning, from the 1790 census all the way through the 19th century, with a single exception after 1840 for complicated reasons, the House grew as the population grew. That continued to happen until after the 1910 census, at which point there was the beginning of a normal debate in the House about how much should we grow and in what way this time. That debate fell apart, and the House ultimately at that point simply didn't act. And the size of the House remained as it was after 1910. Then afterward, after the 1920 census, the House actually actively decided to no longer grow after every census and passed a law that set a cap at 435, which was the size it had reached.

For most of the 19th century, the House of Representatives grew by a formula that allowed states to avoid losing seats. So as the population grew, new seats were distributed in such a way that states with larger populations could grow, but no state would lose seats. That formula worked for political reasons, it made mathematical sense, and that's how things were growing until 1910. And we've been stuck at a 1910 level. So that has meant that as the country has grown—the population of the United States is almost three times what it was in 1910—the House of Representatives has not grown. Each member is now left representing about three times as many people as members did a century ago.

Kevin Kosar:

Yes, in the report that you helped coauthor, I recall seeing that in 1910 the average representative had 210,583 constituents. Today, seeing as there's 330 million plus Americans, there's about 761,000 constituents for each member of the House, which is a colossal number. Which leads to the next question: What would be the benefits of expanding the House?

Yuval Levin:

That question points to exactly where you just pointed to first and foremost, which is, we've reached a place where each member of the House now represents a massive number of people, about three quarters of a million people. At the beginning of our constitutional system, each member of the House represented just about a little over 30,000 people. That number went to 60,000 pretty quickly and gradually grew over time. But the idea originally—James Madison originally proposed a constitutional amendment that would cap that number at 60,000, so that the House would grow so that no member represented more than 60,000 people. We actually reached that number by 1830, and had that amendment been in place, we would now have several thousand members of the U.S. House, which I have to say, I'm glad we don't. But there's a balance to be struck. At this point, members represent such a vast population that it's very hard for them to be representative in something like the same way that members of the House were intended to be.

So that's one very important first reason why an expansion might make sense: It would allow for members to represent a smaller number of people and therefore hopefully to represent them better. At the same time, there are also reasons to think that expanding the House could address some of the challenges that we face now when it comes to the way the House is run and to some of the problems that we find in our political culture. The proposal that we make in the report you mentioned would expand the House all at once by 150 members (which is roughly where we would be now if we had continued following that formula from the 19th century every 10 years since 1910) and then grow the House after that by that formula after every census. That kind of sudden increase by 150 members could provide for a moment of reform in the House, a moment where it seems like things could change and where members might be inclined to think about what other rules should change. How should the budget process change? How should the committee system change? There are a lot of reasons now to try to rethink some of these things. And there are a lot of members who want to, but there's a kind of standing inertia that holds them back from believing that changes like that are even within their power. A shot in the arm that they would get by having 150 new members could provide for a moment of reform, both within the House and in the states, for reforms of how members are elected, for experimenting with things like ranked-choice voting or other things. All of those could be advanced by a reform that gives that kind of shot in the arm.

And you know, the reform itself I think of as just constitutional maintenance. It's work that should have been done this whole time that we haven't done and that we should be doing now. And then it could have these other secondary benefits, by encouraging reform-mindedness in general when it comes to how we think about the problems of the House.

Kevin Kosar:

I should mention to listeners that one of the complaints one hears from representatives in the House is that they feel grossly overscheduled—that they'll be in one committee meeting, but then they have to get up and leave and move to another committee gathering or a subcommittee gathering, or some such like that. Having to wear so many hats at once leads to them being in a position where they're doing everything, but not doing anything particularly well. Having more representatives, arguably, could mean having more committees and perhaps more eyes engaged in oversight.

That noted, are there downsides to expanding the House's membership? I imagine a speaker of the House would have some apprehension at this prospect.

Yuval Levin:

First of all, as a conservative, I have to say, I think there are downsides to any change we make, and we should also expect that there will be downsides that we do not anticipate. That's certainly true when it comes to political reform. When you change the rules, things don't always happen the way you expect. It's hard to know exactly what the results would be, and we should always be aware of that when proposing reforms.

There are also some downsides that are pretty predictable. A larger House could be more unwieldy—if you think part of the problem with the House is that it is unwieldy, which, as you say, the speaker of the House at any given time surely thinks. But anyone watching the House have trouble passing a budget or find itself breaking down might think, well, the answer to this can't be just more of these people. There surely are ways that the House would become harder to manage and to govern if it was larger.

There are also people who argue that the House would actually become more partisan if there were more members. In fact, there's a kind of argument along these lines from James Madison himself, in writing in the Federalist about the size of the House. Madison does think that the House shouldn't be so small that each member represents a massive number of people. But he also worries about the House getting too big. His worry on that front is that if it's so big that no individual member can really exercise much influence, then it would just be run by its leaders. At that point, the House becomes a force for aristocracy. Then the leaders become so powerful that they just manage these party coalitions, and no single member really makes a difference. That's certainly a concern you hear on this front.

I think the way to think about these problems is to think about scale. There's expanding the House, and there's expanding the House. If we took the House to 2,000 members, I think it would certainly be very hard to run. And it's probably true that you would just find it divided along party lines in very crude ways. On the other hand, you can think about parliaments and congresses and state legislatures that are larger than the House of Representatives, but function pretty well. If we're talking about adding 150 members to the House, that would take us to 585 members. That's still smaller than the House of Commons in the United Kingdom, which functions pretty well as a representative parliament. You can certainly still imagine that kind of House working more or less in the way it does now, while addressing some of the challenges it faces. So I think what this calls for is thinking about scale. The House has to be a face-to-face venue for bargaining. It has to be a place where members actually engage with each other, and not just a venue for mob action. But at the same time, the House is probably too small to be meaningfully representative. So we have to find a better balance.

Kevin Kosar:

When you look at the House today, one thing you’ll most certainly see is that there are any number of members who don't seem particularly interested in governing. As you've pointed out, they seem more interested in engaging in performative politics. One might object that expanding the House of Representatives is going to just lead to another 75 Democrats, another 75 Republicans who want to engage in performative politics, who will make the place worse. What do you say, or your coauthors say, to that objection?

Yuval Levin:

Certainly I think we should not imagine that this reform—or any reform—would be a silver bullet that would solve all of the House's problems all at once. And I certainly agree that it's not in itself a solution to that problem, which is a challenge that confronts the House because of the kinds of incentives that its members face and because of the way that its work is structured. At this point, the way to be prominent really isn't to devote yourself to committee work and become an expert in some important area of policy and rise through the ranks, but rather is to be a cable news personality, or a social media personality, and get known that way, and use the House as a platform for building your own brand.

I think that to address that would require some of the other reforms that I mentioned at the outset, that I hope might become a little bit more thinkable if the House grows. Ways of changing the work of the committees so that they might be more relevant—for example, giving committees a little bit of floor time, so that committee work actually mattered and members didn't have the sense that, well, whatever we do here is just going to get undone by the speaker when it's time to actually fire with real bullets. Changes to the schedule that allow members to spend more time together in Washington working on legislation. Some reforms of the ways in which the leadership is structured and how it interacts with members.

There are a lot of ideas out there. What we're lacking in a lot of these fronts is the will to do it, or the sense that it could be done. And I think expanding the House, as I said, could help that. But certainly by itself, I don't think that it necessarily addresses the problem of the performative member. I don't think that it aggravates that problem. I don't think it makes it worse. I don't think that it's the fact that the House is large that creates that problem. It exists in some ways in a bigger way in the Senate, where precisely because members have a bigger platform, because there are fewer of them, they're more inclined to think of themselves as working on a platform and building a following.

But I think you have to see these things as all connected. In a sense, the question of reforms of our system has to be addressed to the nature of the problems that system faces, and this challenge of how members spend their time is one of them, but by no means the only one.

Kevin Kosar:

Yes. Well, you hinted at this a bit earlier: the politics surrounding expansion of the House membership. The report notes this was a normal thing that Congress did for a very long time, and then a little over a century ago, it just stopped expanding the House. One thing that readers of the report might find interesting is that when you look at the numbers, it seemed expanding the House of Representatives is not going to advantage one party or the other, and is not going to affect who ends up as president. With those two things set aside, what then is stopping people from taking this seriously on Capitol Hill? Or is it the case that they are so caught up in worrying about the political calculations that they just don't believe it and just won't act?

Yuval Levin:

It's worth saying a word about that first point, the partisan valence point. You can imagine ways that a larger house might, as you say, affect not only the partisan control of Congress, but also the presidency, because each state's electoral votes are determined by the size of its congressional delegation. So if states have more seats in the House, they're also more weighty in the Electoral College. And increasing the size of the House—you can imagine ways that it could also empower one party or the other, give it a better shot at controlling Congress.

We ran a lot of models in the course of producing this report, and the outcome of those, which is also supported by now quite a lot of preexisting political science, is that there's not a particular partisan valence to this reform. It doesn't make it more likely that one party or the other would end up in control of the House. And it also doesn't make it more likely that one party or the other would be more likely to win presidential elections. If this change had been made before prior presidential elections, if the House were 150 seats larger in any presidential election year since 1972, which is the range of years that we ran the model through, the outcomes of all of those presidential elections would've been the same as they were with a bigger House. We did find that in 2000 there would've been a tie, and it would've been thrown to the House, but the House would've chosen George W. Bush, because that's the way the state delegations worked at that time. So, we would've ended up with the same presidents we have. And control of Congress would not swing in one direction or another by a statistically meaningful degree. So that's not the issue here.

So, as you say, why are members reticent? I think there are a couple of reasons. One is a general sense that just having more members in a sense devalues the currency of each member, that you become less important in the larger House as a single member of the House. I think that there's also a sense that a change like this is unpredictable. By definition, members of the House at the moment are people who benefit from the existing system. They've succeeded under these rules, and you're asking them to change the rules. So it takes some persuasion to get them to a place where they think that they wouldn't be disserved by those new rules.

One way that we've tried to address that problem is by thinking about the incentives they face. And this is not exactly our idea, this is the formula that was used to expand the House throughout the 19th century, very largely for this reason. The formula says that no state loses seats in the House after the census, that states can only gain or remain where they are. That's enormously appealing to existing members, because members always confront the possibility that their state would lose some seats, there would be redistricting, maybe their party doesn't control the state legislature, and they get redistricted out of their existing seat. This kind of reform offers them the promise of avoiding that risk so that at least there would still be the same number of members from their state. And by continuing to expand, you offer a kind of opportunity for creating more political offices for people to reach for, rather than fewer.

Nonetheless, I would say this is an idea that takes some persuading. The notion that the House should grow, that the House should change in some dramatic way, has to combat the existing standing inertia that members face. They worry about it, they think, "Hmm, I'm doing okay now. I don't know how I'd be doing under that system, so I'm not so sure." We're certainly starting, if not from scratch, then almost from scratch in talking to members about this idea. We've done since the report came out a fair amount of talking to members about it. There's some openness to it among members who are inclined to think about congressional reform, but I think a lot of members have never considered it. And when they first hear...

The topic of this episode is, “What is wrong and right with the House of Representatives?”

My guest is Dan Lipinski, who is uniquely positioned to answer this question. He was a member of Congress, and represented Illinois’ third district from 2005 to 2021. He also is a political scientist — he got his doctorate from Duke University in 1998. And if that is not enough, Dan is a former congressional staffer and a socially conservative Democrat. You don’t find many of those anymore. You can see Dan’s recent writings on his website, DanLipinski.com, which includes an essay for The Atlantic titled “The House of Representatives is failing American democracy.”

Kevin Kosar:

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

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

Sir, welcome to the program.

Dan Lipinski:

It's good to be with you, Kevin.

Kevin Kosar:

Let's start this conversation on a positive note. You served in the House of Representatives for 16 years. What accomplishments are you most proud of?

Dan Lipinski:

Well, if I had to pick out one bill most proud of — I actually was able to pass about 17 bills in my 16 years in Congress — but the one that I spent the most time on, maybe the longest lasting impact, is the American Manufacturing Competitiveness Act. The requirement of that bill is every four years, the administration needs to create a strategy to promote American manufacturing. We could do a whole podcast on just what it took through five years to get this bill passed. We finally changed it to go to a different committee. In the end, after we spent five years working very hard, first it got attached to one bill, which we strategized to do, and then that bill unexpectedly got attached to an omnibus bill at the end of the year. After five long years of working on it, I was actually shocked when I saw it show up in an omnibus bill. Like I said, we could do a whole podcast on that and the strategy, and all the pitfalls, and what it took to get it through the House and finally get it through the Senate, get the president on board. It took a long time. But the first one was done in the second year of President Trump, and the second one now needs to be done early next year by the Biden Administration. So it's a plan to promote American manufacturing, kind of like the Quadrennial Defense Review, which the Department of Defense every four years needs to look at the defense department and put out a plan for the next four years.

Kevin Kosar:

So, you're a legislator who got things done. But as you just mentioned, it sure wasn't easy, and it sure didn't follow the script that many of us learned in Schoolhouse Rock all those years ago about how a bill becomes a law. This gets us to my next question. Let's talk about what's wrong with the House of Representatives — why it's so hard to get things done. In an article for The Atlantic, you state that the House, whether controlled by Democrats or Republicans, now acts as if it were a unicameral legislature in a parliamentary system, rather than acknowledging that it is only one of two legislative chambers in a presidential system. Wow. Say more about that. Why is this happening?

Dan Lipinski:

Well, first of all, it's a shame the listeners can't see video, because I just held up my little Bendable Bill figure, who I did bring to the House floor a few times. The speech that I gave, my wrap-up speech at the end of my time in Congress, I brought Bill out there and I talked about this. The problem that we have right now — you know, Schoolhouse Rock, “I'm Just a Bill,” everyone should see that. It does the basics of how a bill becomes a law. It goes through committee in one chamber, the committee goes to the House floor or the Senate floor, and it has to go over to the other chamber, it passes, and then if it passes that second chamber, it has to go to the president for a signature. Well, it doesn't work quite as smoothly as it shows up in that video now. And it's a shame, because it is supposed to work the way that that video shows. The video shows a legislator having constituents come to him with an idea. And they say, There are ought to be a law. And he says, You're right, there ought to be a law. And he writes up a piece of legislation, and then it goes through the process. And the committee is supposed to — there’s Democrats and Republicans on every committee — they're supposed to debate it, amend it, decide if they want to pass it. Same thing happens on the floor. And it's all portrayed in this video as Democrats and Republicans, both parties, are working on perfecting legislation, deciding if they want to pass it.

Well, unfortunately, right now in the House it is so much controlled by the speaker. Everything — I shouldn't say everything. Every major piece of legislation is controlled out of the speaker's office. And so when I say that the House works like a unicameral parliament, if we had a unicameral parliament, first of all, if we had a parliamentary system, we'd have a prime minister who'd be the executive who was chosen by the members of Parliament. We don't have that. Our country was founded specifically not to be that way. We have a presidential system. The president is chosen separately from the House or the Senate. They do not choose him. We oftentimes have divided government. Divided government is when one party does not control everything. If it’s a unified government, one party controls the House, the Senate, and the presidency. Otherwise, it's a divided government. Over the last 41 years, we have had divided government more than 30 years.

And the Senate filibuster makes it even more difficult. You need 60 votes in the Senate. There's been one year in the past 41 where one party had the majority in the House, had 60 votes in the Senate, and had the presidency. Unfortunately, what the House does, instead of looking at it and saying, Well, in order to get anything done, we need to get the other party on board, at least some members of the other party on board and supportive — instead, what the House does is basically passes legislation only with the votes of members of the majority party. The minority party is completely left out. Now, if a couple members of the minority party want to vote for the legislation when it gets to the House floor, the majority party's happy. But they don't want to rely on — the speaker does not want to rely on votes from the minority party.

So the House passes bills that are crafted by members of its own party, and that usually almost always makes them more extreme than what is mainstream in the country. Maybe it's the middle of that party ideologically, which is either, if the Democrats have the majority, too far to the left, if Republicans have the majority, too far to the right of what mainstream America will support. But the House does this because the speaker’s focused on the next election more than anything else. And trying to pass things out of the House is sort of an ideal for the party. So the House passes these bills and they go to the Senate, and the Senate says, We can't pass that, we cannot get the 60 votes to overcome a filibuster. Even right now with the reconciliation bill, the House passed the bill, the Build Back Better, Biden's agenda. The House passed the bill that, even under reconciliation, where you only need 50 votes in the Senate — and there are 50 Democrats in the Senate — that bill that the House passed cannot pass the Senate. So what usually happens — we'll see what happens with reconciliation. This is what happened with the infrastructure bill. The House passed an infrastructure bill earlier this year. The Senate basically threw that bill in the trash and a bipartisan group of senators got together and said, We have our own infrastructure bill. That's nice you passed yours, but if anything's going to become law, it's going to be ours. This bipartisan group of senators passed the bill in the Senate. It took a few months, the House Democrats finally decided, Okay, we'll swallow that bill because President Biden wants to get this done. And they passed the Senate bill. The House had no input whatsoever in that infrastructure bill.

That is what has happened so often over the last 10 years. Major legislation that becomes law has almost always come out of the Senate, and usually the House has no input whatsoever. So basically, the Senate has become the only house of Congress when it comes to passing major legislation, making laws on major issues. Otherwise, what happens more often is just gridlock. The House and Senate, even when controlled by same party, can't agree. There's a lot of issues that are left to side, immigration being one of the most obvious ones. That's not even being talked about right now, when we have Democrats controlling the House very narrowly, controlling the Senate, and have the White House.

Kevin Kosar:

It's a very peculiar thing that leadership in the House operates under this premise that if they just pass things on party line votes, that somehow this will work out well for them in the next election. I would think that for the most part, what we've seen over the past 30 years is that this is not going to create a lasting majority, because partisan control of the House has pinballed back and forth at a rate that's just unprecedented, since at least the late 19th century. There's not much stability. Voters are not rewarding majorities in the House for this behavior. So this is not working. This doesn't make a whole lot of sense. It prompts the question, all right, what can members of the House do to fix the chamber?

Dan Lipinski:

Well, first of all, it seems that what the strategy has become for both parties is, all right, when we don't have the control of both houses of Congress and the White House, we're just going to work to try to get control of all three branches, both houses, and then get exactly what we want done, get that done. The rest of the time we're going to play defense. And there has been talk this year amongst Democrats that, well, this is our opportunity. We're probably going to lose the House anyway, so let's pass everything we can and try to get as much as we possibly can into law right now, before we lose the majority in the House and then we as Democrats can't get anything done. I think there are some members of Congress, many members of Congress, who feel that way.

There is almost a sense that when there's divided government, nothing gets done and nothing's going to get done, which is really foreign to the way that I always thought about it. I always thought after the election — Every two years there's a federal election and you get all 435 House seats, you get a third of the Senate, every four years it's the presidential election. And people would come to DC after the election and say, Okay, who has majority in the House? Who has the majority in the Senate? Who's the president? What party? And they'd say, Okay, what can we work on over the next year and a half? What can we work on together to try to make things better in this country? And then we'll spend six months campaigning and try to do the best we can for our party in the next election.

Now, every two years after the federal election, everyone comes to DC, takes a look around, sees who has the majority where, who has the White House, and each side says, Well, what can we do in the next election? What can we do in the next two years to get control of everything, or maybe more control of everything? Maybe you have unitary government and say, Well, how can we get even more members, so we don't have to deal with — How do we overcome the filibuster? How do we get enough senators to overcome the filibuster? It's all about the next election, so we can do as a party what we want to do. What we need is members of Congress who come in and say, We are there to get things done. Members of Congress who will do what I said used to be the way things work: Accept this is where we are right now. This is who's in the House, who's in the Senate, who has the control, who's in the White House. And what can we work on together? There has to be an attitude change, that everything is not partisan. Right now everything — more and more I saw over my 16 years in Congress, more issues became partisan that had never been considered partisan before. So we need that.

And in the House, you need to change the rules. Members have given up, a lot of the House has given up a lot of their power to their party leaders, mostly for the speaker. The speaker has some majority rules in the House. That means a speaker controls the legislation to a large extent that gets to the House floor. But even the minority party has given up power to their party leader who says, Okay, you need to let me make the decision so that we can win the next election and get into the majority. And the only way we can do this is working together, and the only way we can work together is if you give me the power.

Kevin Kosar:

I think there are a lot of us who feel that the reforms of the early seventies, which evolved even further over the eighties and nineties, that took away power from committee chairs and slid more of it to the speaker's office — while they were understandable at their time, the long term effect has been to create a lot of negative incentives, as you know all too well. Doing honest oversight, crafting bipartisan legislation within committee, is a lot of work. And the question is, why bother doing all that work if it's not going to go anywhere? If you can’t actually change the law to make programs work better, or make a new law to tackle new problems, it kind of undercuts those incentives.

Now, I want to follow up. You mentioned the importance of changing the rules. Listeners may recall that every two years, the House of Representatives is kind of reborn. And when it's reborn, it has to readopt rules. And that, as you and others have shown, is an opportunity. I wonder if you could just educate readers a little bit about that?

Dan Lipinski:

Well, the first day that the House is in session every two years after the election, the new Congress comes in and has to adopt rules for how the body's going to operate. Each party caucus also — Democrats call it a caucus in the House, Republicans call it a conference — each party also adopts rules for how their party is going to operate. Now, back in 2018, I was a member of the House Problem Solvers Caucus, which is a bipartisan group of members evenly divided between Republicans and Democrats in the House. In the summer of 2018, we said, There's going to be a new speaker coming in, no matter what. Republicans were in the majority, Paul Ryan was the House speaker, he said he was stepping down. So we knew there was going to be a new speaker, and we thought, this is an opportunity to say, Here, these are rules changes that we want to open up the process, to give committees more power, to give individual members more power to legislate. And so the election comes, Democrats took the majority in the House. So a new speaker has to be elected as they do every two years, but this is someone coming in that wasn't speaker in the last Congress. So Nancy Pelosi's the Democratic nominee. And there was a group of us, eight or nine of us, who said, Okay, we're not going to vote for Nancy Pelosi for speaker unless she agrees to change some of the rules and give more power to the committees and individual members. The problem is, when you have someone who's already a leader (Nancy Pelosi had been speaker; after Democrats lost the majority, she remained as minority leader), there was a real — It's difficult to take power away from a leader, because you fear reprisal. I'll be honest, there was a fear that if anyone went to Nancy Pelosi and said, I'm not going to vote for you unless you change the rules and give up some of your power, that that's going to be held against them. And so we wound up getting a few small rule changes that were made. Nothing near what we had been asking for, nothing near what I had wanted. But we were able to get a few rules changes.

But that's what's going to have to happen. You go back in history, the revolt against Speaker Cannon, and we're talking about a century ago — Members are going to have to say, Well, wait a minute. We want to have more power. We don't want the speaker controlling everything. Unfortunately, there are fewer and fewer members of the House, at least, who know, who remember, who have been there when they actually legislated. There are a lot of people who run for Congress now who have no interest in being a legislator. You see everything that's going on. What gets all the attention? The tweets get a whole lot more attention [than] anything that gets passed. So we need to have legislators, and members who want to be legislators, and members who say, Hey, I'm here to represent my constituents before I represent my party. It's not all about the party. I'm a loyal party member, but my constituents elected me and I'm here to represent them. And that's what Madison, when the Constitution was written — that was the intention. He believed, the framers of the Constitution believed, that was what was necessary to have a good government and a government that people accepted as legitimate. They saw that they had representatives who were actually voicing their constituents’ opinions, not just the party agenda. I think we need to figure out how we're going to get back to that.

Kevin Kosar:

Absolutely, absolutely. Changing the rules of the House is not easy. It takes individual courage, the ability to, as you say, overcome the fear of reprisal. It's an exercise in overcoming a collective action problem. And it also requires legislators who are sufficiently in the know, who can see a possibility beyond the sort of bleak partisan landscape that presently exists.

Dan Lipinski, former legislator and a scholar of Congress. Thank you so much for sharing your wisdom and insights.

Dan Lipinski:

It's good to be with you, Kevin.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this...

The topic of this episode is, “What differences do women make in Congress?”

My guest is Michele Swers, professor of American government at Georgetown University. She studies Congress, congressional elections, and women in politics. She has written a lot of research articles and book chapters, and also is the author of two books on women in Congress. The first one is titled The Difference Women Make: The Policy Impact of Women in Congress. The second book is titled Women in the Club: Gender and Policy Making in the Senate. And, I would be remiss if I did not mention, she is the coauthor of Women and Politics: Paths to Power and Political Influence.

Kevin Kosar:

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

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

It is to Professor Swers we now turn to learn about women in Congress. Professor Swers, welcome to the program.

Michele Swers:

Thank you, Kevin. Thanks so much for having me. I'm a big fan of your podcast.

Kevin Kosar:

Oh, thanks for saying. Let's start with a really simple question. How many women are in Congress today?

Michele Swers:

So, right now you have 120 women in the House. Eighty-nine are Democrats, 31 are Republicans. And in the Senate, you have 24 women, 16 Democrats, 8 Republicans. From those numbers, you can tell that there are more women who are Democrat than Republicans. And that's because the number of women really started to increase in 1992, and people called that the Year of the Woman, but it was really the Year of the Democratic Women. It was Democrats who elected more women at that time. They had a pretty good year that year. Even in years where Republicans had good years, like 1994, they elected more women, but not a lot more women.

In 2018, Democrats elected another Year of the Woman, but they elected more women of color. So there was a lot of attention to that. And that's when I'm sure your listeners know that Alexandria Ocasio-Cortez comes into the picture and Ayanna Pressley and some others. And then in 2020, Republicans did have a very good year. They went from 13 women to 31 in the House of Representatives, and they elected a greater mix of women and minorities. It was a good year from their perspective.

But you can tell though that by these numbers, when Democrats are in charge, women have more access to the majority and seats of power. So women are about 40 percent of the Democratic caucus in the House, and that means they have some seniority level. In the House, on the Democratic side, anyway, committee assignments work based on seniority, so you have more women who have access to be chairs. So Rosa DeLauro, head of Appropriations, or Carolyn Maloney as the Oversight chair, Maxine Waters at Financial Services — important committees.

On the other hand, for Republicans, women are only about 15 percent of their caucus. They've had a woman in the conference chair position for a very long time — obviously turnover with different women. Most recently, Liz Cheney was pushed out, and Elise Stefanik is now the conference chair. But they don't have as many women with seniority. There are not as many women who will reach those committee chairmanships when Republicans are in charge.

Right now you do have Kay Granger at Appropriations. She's the ranking member, so maybe she'll become the chair if Republicans take over in 2022. And Virginia Foxx at Education and Labor, she would need a waiver, so she would like a waiver. And if she doesn't get it, I think Elise Stefanik wants the position. But you don't have that many Republican women with seniority. There's also Cathy McMorris Rodgers, and she could end up becoming chair of Energy and Commerce if things go in the majority.

A lot of the women that came in were elected in 2020, and so they're not very senior. It'll be a few years before they could develop into those leadership positions if they stay in Congress.

Kevin Kosar:

If I can just do a quick follow up on this question — you were highlighting some partisan differences. One thing I observed after the last election was, you had Kevin McCarthy, the head of the House Republicans, on Twitter, bragging about how the GOP had brought women into the party. You’ve studied this stuff for so long. Is this new, the GOP and the House bragging about getting more women, Republican women, into the chamber?

Michele Swers:

Yes and no. Republicans don't like to play what they call identity politics. They don't want to have policy that is necessarily focused on particular groups. But they do value having diversity in the ranks, because they know that Democrats particularly are going to hit them on this. Democrats have been talking about Republicans as being engaged in a war on women for many years, and it's much easier to push back on that if you have more diverse faces in your caucus. Republicans also recognize that the country is changing, and you have more minorities in the population — more Latinos, particularly, they want to reach out to. And so they do want to elect a more diverse set of members of Congress. And when they do, they are very likely to push them to the front.

Where they differ from Democrats, though, is diversity is not as big of a value within the party for elections. On the Democratic side, for a long time, you have an infrastructure of groups like EMILY's List and training organizations which are designed to reach out to women to try to recruit them to run for office and fund them. Republicans don't have that deep bench because it's not something that their donors tend to respond to. So the organizations they have, something called VIEW PAC, Winning For Women. Elise Stefanik really pushed this through her E-PAC, which is her leadership PAC. Those are relatively new, and they don't raise the sums of money that you see being raised by EMILY's List, because their donor base is just not as responsive to those kind of calls.

Kevin Kosar:

Excellent. Thank you for that. One thing I've come across in the political science literature is that a number of scholars argue, quite persuasively from what I have seen, that women are more effective in Congress. Now, measuring legislative effectiveness is a vexing, complicated thing — we'll put that out there. But, what's your take on the topic?

Michele Swers:

I'm in agreement with you that it depends on how you're measuring effectiveness and what you mean by effectiveness. I think you can certainly say that there's evidence that women are more active, perhaps more productive. So you have people that look at things like bringing home money to the district and projects to the district. Lazarus and Steigerwalt, in their book Gendered Vulnerability, and Anzia and Berry in their article, they both find that women are more likely to get federal dollars for projects back at home. So if you consider that to be effectiveness, then they're more effective in that way.

People who look at bill sponsorship and co-sponsorship, like Craig Volden, Alan Wiseman, Dana Wittmer, and others, do find that women sponsor more bills, they co-sponsor more bills. So they're more active in that way. But there's mixed evidence about how far those bills get. Some of that depends on what are the bills about. So if the bills are about issues like healthcare, those are pretty contentious issues that have a hard time advancing in Congress generally. They find that women, when they're in the minority party, maybe because there's more of a history of consensus building when you're in the minority, that women are passing more of their bills as minority party members. But they don't pass more of their bills as majority party members. This difference gets more stark as we have more polarization in Congress and that consensus-oriented leadership style is less valued.

Kevin Kosar:

Now, legislative effectiveness is an important topic. But that's not the only thing that matters when we think about legislators in Congress or women in Congress. Your first book, The Difference Women Make, analyzed the House of Representatives. What did you find?

Michele Swers:

I wrote that book right after — the focus of it was right after that first Year of the Woman, the 1992 elections, when you could have more of an analysis that was more systematic rather than anecdotal interviews. And what I was trying to determine is, there's an assumption in political science that members of Congress, their number one concern is to get reelected. We know that from David Mayhew's Electoral Connection. So if that's the case, they just need to be responsive to the district. Otherwise, they get voted out. So it should not matter if I elect a man or a woman, a Latino, an African-American, it doesn't matter, right? It's just what does the district want, and they have to be responsive to that. So my question was, if I elect women, do I get any different policy priorities? Do they focus on different policies? Because any district can really accept any number of policies, but you just have to take positions and votes within a certain space.

So that's what the book was really focused on. I looked at basically gender differences in legislative activities: sponsorship, co-sponsorship, what were you doing in committee, what did you push for on the floor, those kinds of things. And I found that generally, the more something is directly connected to policy consequences for women, so when we think of things like women's rights issues, that the women in Congress were more engaged, they were more involved. They were more likely to push things like paid family leave. And we see that now, the paid family leave in Biden’s legislation. Kirsten Gillibrand had this Family Act that's partially based on Rosa DeLauro in House, Patty Murray in the Senate. So women were more likely to do something like a paid family leave. A Violence Against Women Act was very much also pushed by a lot of the women in Congress, issues related to pay equity, the Lilly Ledbetter Fair Pay Act, things like that later on. So you saw the most difference on issues that you could connect to consequences for women directly.

On issues that we kind of associate with women, more social welfare type policies, education, general healthcare, there's not really that much difference between men and women in their level of activism. When you did see difference, it was when women were in the majority party, because then they have access to the agenda and your bills could move somewhere. So you saw some more difference when women were in the majority.

Kevin Kosar:

Alright. We just heard a bit about the House. Let's talk about the Senate. Conveniently, your book Women in the Club focuses on the higher chamber. What did you find there?

Michele Swers:

When I was doing my work on the Senate, I wanted to focus on those differences related to the women's rights issues that we expect, but I also wanted to branch out and see if women brought a different perspective based on their experiences, their life experiences as women, to other areas. And so I wanted to also look at defense policy, which is an area where people think that maybe women are less qualified. And I wanted to look at judicial nominations.

In the Senate, members can do more. In the House, you're really constrained by your committee position. But in the Senate, they get multiple committee positions and they can really do what they want on the floor. So it gave more leeway to be able to see, so where would they focus their attention and what kind of perspective would they bring?

In the area of judicial nominations, what I found was, this is an area that's really constrained by party politics. An individual senator is expected to support the nominees of their president if they're of the president's party. At the time that I'm looking, the nominations are George W. Bush's nominations to replace Sandra Day O'Connor, the first woman who was ever on the Supreme Court. You would expect here that gender would be a primary focus, so maybe some of the Republican women would be reluctant to support somebody who doesn't support women's rights in the way that Sandra Day O'Connor did, or something like that. Or they would be pushing for a female nominee. And they did push a little bit for a female nominee, but that, of course, is George W. Bush's decision as president.

What I saw was that the Democratic women, when they speak on the floor about what's the reasons that I'm supporting, whether it was John Roberts or Samuel Alito at the time, the Democratic women compared to the Democratic men were more likely to focus on Alito or Roberts' positions on women's rights — and on women’s rights beyond abortion politics, so things like pay equity. But on the Republican side, the Republican women down the line were fully supportive of Roberts' and Alito's nominations, and were not going to differ, even though they were getting a lot of pressure, particularly the moderate women like Susan Collins and Olympia Snowe, to vote against Roberts and Alito because of their presumed positions on Roe v. Wade (which of course is now before the court).

What was interesting about it was, it also goes to current times when people were pressuring Susan Collins to vote against Kavanaugh. She did a very similar thing. Generally what she would do is, as a Republican, you are expected to support your president's nominee, and you really don't get thanked by the other side if you don't support your president's nominee, but you most certainly get punished by your side if you don't support your president's nominee. So she will go and talk to the nominee, get reassurance that they support stare decisis, and then take that to mean that they would not overturn Roe v. Wade. She'll announce that she gets this assurance. And then she goes ahead and supports the nominee. Even at the same time, during the same time period, she was voting against the Partial-Birth Abortion Ban, which was going through Congress, which then Roberts and Alito will later uphold. So it's separate. Legislation is separate from nominations, even in a really gendered context like that.

When I was looking at defense policy, here I was interested in, people assume women are more pacifist than men. So I looked at things like how were they voting and speaking about the Iraq War. And they were not more pacifist, they were just the same. What matters is ideology. So the more liberal you were, the more likely you were to be opposed to the Iraq War, and that was true for men and for women.

When it came to the type of policies you were supporting, a lot of what happens in Congress and in the Senate is not so much the higher level thinking about strategic planning as it is protecting the defense priorities in my state. So if you're from Virginia, you really like aircraft carriers and those kind of military ships and things, and you're going to protect that, and you're going to protect those bases. So a lot of what the members do is really focused on that. In Maine, they also have military ships there and building of military ships, so they're interested in protecting that. But where there was gender difference is, the women were more interested in promoting benefits for the military. So what you think of as social welfare issues — health benefits, education benefits, benefits for veterans. The women were more likely to sponsor and co-sponsor in that area, social welfare benefits for the military.

And then the third area I looked at was women's rights policies. Very similar to the House, I did find that the women in the Senate were more likely to be active on and promote issues related to women's rights. The Lilly Ledbetter Fair Pay Act was something that was going through at that time, and the reauthorization of the Violence Against Women Act. And the women, both the Democrats and the Republicans, were more active.

On the Republican side — for Democrats it’s easier because their political base really supports these things. So this is something they're personally interested in, and it pays political dividends with their base. For Republicans, it's a little bit trickier. For them, if they're more moderate, it's something maybe the base doesn't support. So they have to decide, how much do I want to get involved in this kind of thing?

For conservatives, these kinds of issues are not really central to Republican Party politics. So if I'm spending a lot of time and energy and political capital on something like Violence Against Women, I'm having to not spend time on other things that may be more personal priorities to me or might get me more sway within the Republican caucus. So they have to be careful about what they want to do.

And there's a lot of attention to Republican female senators. So if I'm going to go and vote against, let's say, the Violence Against Women Act, I'm going to get a lot more attention than a Republican man is going to get. And I don't really enjoy being portrayed as a woman who's not supporting women. So that was a conflict that these Republican women have to deal with. And you still see it today.

So right now there's not a lot of action on the Violence Against Women Act because there's other things going on, but they are in a reauthorization period. And it's Joni Ernst that Republicans have taxed with trying to reauthorize this. That process is at a standstill, but Ernst is cooperating with Gillibrand to try to push more legislation to how the military deals with sexual assault and sexual harassment. That's part of the Defense Authorization bill that is theoretically being debated in the Senate right now, although a little bit stalled as they try to come to agreement over amendments.

Kevin Kosar:

Follow up question on women in the Senate. The Senate for much of its history was a boys' club, an old boys' club. Presently, women are clearly still a distinct minority in the Senate. Yet, by my light, it feels as if women's power has peaked. Not that it won't go higher and higher — I assume that it will — but women have been hugely influential. Names come to mind like Sinema, Murkowski, Collins, Snowe. It seems like so much media coverage about what's going to happen on...

The topic of this episode is, "What is the role of the Senate’s majority leader?"

My guest is Dr. James Wallner. He is a senior fellow at the R Street Institute and a lecturer at Clemson University. He is the author of three books on the Senate, including one titled On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (2017). James has worked in the Senate, and also is a cohost of the Politics in Question podcast. 

Kevin Kosar:

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

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

It is to James Wallner that we turn to learn about the role of the majority leader. James, welcome to the program.

James Wallner:

Thanks for having me.

Kevin Kosar:

First question. Chuck Schumer is the current majority leader in the Senate. How did he get that job? What's the process? Did all the senators get together and vote for him or some other candidate?

James Wallner:

Well, that's how it works in the House, where you nominate candidates to be the speaker of the House. Nancy Pelosi is our current speaker. Democrats and Republicans on the floor of the House all cast a vote for the speaker, and the nominee with the most votes becomes the speaker. And so the majority party, in effect, selects the speaker. In the Senate, it's a similar process, but slightly different, because they're not electing a speaker, they're not electing a presiding officer. The majority leader, Chuck Schumer, is merely the floor leader of the party with the most votes — so in this case, the Democrats. And it’s 50–50 right now, split evenly between Democrats and Republicans. The vice president is a Democrat, so assuming that the vice president would cast her vote with the Democrats on a tie vote — under the Constitution, she gets to do that — that means that Chuck Schumer has more votes behind him than the leader of the Republican Party, Mitch McConnell, has behind him. So he is the majority leader, McConnell is the minority leader. The way they're chosen is simply by their party colleagues in secret ballot, in a meeting that usually happens right after the election, typically in December following an election before the new Congress meets.

Kevin Kosar:

You underlined a point there about the difference between leadership in the House and leadership in the Senate. It sounds, at least ostensibly, that a speaker may make a claim to be the head of the whole of the House, whereas in the Senate, it sounds like the majority leader is just the partisan leader.

James Wallner:

Absolutely. Look, party leaders in the Senate have institutional tasks, too. They help to schedule legislation. They do a bunch of different things that institutional leaders in the House, like the speaker, also do. And the speaker is also a partisan leader, in the fact that she is selected by her majority party caucus and really works to advance the agenda of the majority party. So they go hand in hand. But there is no Senate leader. I'm reminding myself of Woodrow Wilson, where he says, "There's no leader in the Senate," and that's something that's really frustrating him. And this is what makes the Senate great. Because there's no one that presides over the Senate, who wields lots of power, whom all senators vote for, the institution has a very decentralized set of procedures. The way it makes decisions is very decentralized. And the majority leaders (that weren't in existence prior to the beginning of the 20th century) and the minority leaders, their job, while they do it differently over time, is really then to facilitate the participation of members in the process and also to help to enact their agendas. So there's an institutional component to it, and there's a partisan component to it.

Kevin Kosar:

Is there anywhere listeners can turn to see a job description for the majority leader?

James Wallner:

You could just Google it, I'm sure, and you’d get lots of interesting stuff. You'd probably look up something on Senate.gov. You can look at different biographies of different majority leaders in the past. Robert Caro's The Master of the Senate, a book about Lyndon Johnson, is a great example. But I want to underscore something. There is no one way to lead the Senate. That changes, and it changes over time in response to the environment in which the Senate operates, the problems and challenges that the senators have, and the goals that they want to achieve. And so the leadership position is going to look different at different points in time. There is no one way to lead the Senate.

Kevin Kosar:

And how does one lead the Senate? The first place a person's mind might turn to are powers. We should talk about powers. When you think of leaders, usually leaders have some sort of powers they can use to get other people to obey them. Does a majority leader in the Senate have any powers that are granted to them by the Constitution or Senate rules or something else? The power to give out resources, the power to assign people to committees, power to do whatever it might be? What powers does the Senate majority leader have?

James Wallner:

Well, the short answer is none. If you think about it, that seems a little strange, because if you open up the newspaper and spend five minutes reading about the Senate, you're going to hear a lot about Mitch McConnell, you're going to hear a lot about Chuck Schumer. You'll hear about some other members as well, but we hear about the leaders. The leaders don't have any powers, certainly when compared to the House. They're not mentioned in the Constitution, like the speaker of the House is. The Senate rules themselves, they mention the majority and minority leaders on several occasions, but not in any real, significant way. And they don't really bestow on the two leaders any significant powers. The reason why they're powerful is because the rank and file members, the lawmakers themselves, defer to the leaders to do a whole host of different types of activities to make the legislative process more orderly. This first starts in the late 1940s, early 1950s, and it gains steam over time.

There's something else I really want to underscore though — that the leader has what we call priority of recognition. So everybody's favorite vice president, John Nance Garner, “Cactus Jack,” in 1937 created a precedent. A precedent is simply just what the Senate did in the past. And it looks to its past behavior on occasion to decide how it wants to operate in the present. And so there's a precedent out there where Cactus Jack is sitting there presiding over the Senate, and he just says one day, “Alben Barkley,” (ironically, a leader from Kentucky; we’ve got a current minority leader from Kentucky in Mitch McConnell), but Alben Barkley, he's about to speak, and Cactus Jack says, "You know what, I'm going to recognize the majority leader first, and then the minority leader after him, if more than two senators are seeking recognition at one time." So that's priority of recognition. It's a favor. It's a favor that the chair, the presiding officer, and in this case, the vice president, gives to whomever the floor leader is, whomever the majority leader is. And it's something that the Senate can't force the chair to do.

Now, what does the majority leader do with priority of recognition? It doesn't really matter much at the time, but today it's almost everything. Because priority of recognition, coupled with senators’ deference to their leaders to order the chamber for them and order their deliberations and make it more efficient and predictable — and to be quite honest, easy and less hard — the majority leader will use priority of recognition to set the schedule by making motions to proceed to bills. And then, and most importantly, they will use priority of recognition to fill the amendment tree, which is just a fancy way of saying, they will offer a bunch of amendments, one after another, so that no other senators can offer amendments. And this, in effect, shuts the floor down, shuts down a bill, and denies senators the opportunity to amend it. The Rules Committee in the House will do that as a written rule. And you can very clearly see where the power comes from, and you can see when they vote against your amendments why you can't get your amendments. But in the Senate, the leader approximates that by this priority of recognition, in using it to basically do things that other senators cannot do.

Kevin Kosar:

Earlier, you mentioned that one thing a majority leader does is do stuff that other senators don't necessarily want to do. And one of those things I would think would be the seeking of unanimous consent. What is unanimous consent, and what's the leader's role in getting it?

James Wallner:

So typically when I talk about the Senate, I start off by saying the rules don't matter. Then later on, I say maybe one or two rules matter. And then at the end, I'm like, they all matter, all the rules matter. Well, in the “the rules don't matter” stage, they don't matter because of unanimous consent. The Senate has rules, it has procedures to follow, it has things that it does to make compromise. It's worked that way for hundreds of years, for a very long time. But they never follow those rules. Why? Because they're convoluted. They're hard. They require a lot of effort. The former Senate parliamentarian Alan Freeman used to tell me, there's a certain logic to the rules, but it's contradictory. On one hand, it drives senators towards compromise, towards agreement. The process makes things possible. But at the same time, it also empowers individuals to participate in that process, even individuals who disagree and want to stop things that the other senators may want to pass. But those two things taken together ultimately lead to outcomes.

Now the Senate doesn't follow its rules for lots of different reasons, but let's just go with the fact that it makes it easier to legislate. Well, what do they do? They cut to the end. They know they can game it out and they can say, "Well, if we do this, then you're going to do this and then I'm going to do this, and it's going to unfold like that.” This is how Mike Mansfield and Senator Richard Russell, when they had this meeting in his office prior to the debate of the Civil Rights Act of 1964, they told each other what they were going to do, how they were going to try to win that debate. So I imagine this playing out in senators’ heads. I don't think it does in that same way, but they just cut to the chase. And so they see where things are going to go and they say, "Okay, well let's just not go through all the effort to get there. Why don't we just agree by unanimous consent to waive all our rules and just set a 60-vote threshold, for instance, to pass something” — instead of first having to invoke cloture, which under the Senate rules requires typically 60 votes, and then going through a post-cloture period, and then finally having a simple majority vote on it. Let's just cut to the chase — unanimous consent. And so unanimous consent is a way that the Senate waives its rules and creates a new set of procedures, sometimes very intricate, sometimes not, for a specific bill or a specific debate, or even just for a specific slice in time, so that it can avoid the Senate doing something else under those rules.

Kevin Kosar:

I've heard it said that the majority leader doesn't decide what gets voted on in the Senate, but rather coordinates what gets voted on in the Senate, and will do that through this process of seeking all senators to agree to unanimous consent — so that when he shows up on the floor one morning to do something he doesn't get surprised. Because apparently one senator can gum up the works. Is that right?

James Wallner:

It's right only insofar as that senator's on the floor at the moment unanimous consent is propounded and requested of other senators. And oftentimes, and this has happened during my career in the Senate, the leaders will, when they want to, they will conveniently overlook the fact that someone may have concerns. And in the past, going back to the ’80s, you had Senators Baker and then Dole on the Republican side who were very explicit in reiterating to their colleagues that unanimous consent, or the cloakroom and the hold process and the ways in which the leaders won't ask consent if rank and file have a potential objection — all of those things are favors or services that the leaders are giving or doing to provide for their rank and file. They don't have to do them. And so if you're not there, you can't object. You can't say no. And if you are there, there's certainly things that leaders can do to make it very hard for you to object. They can wait until the last minute, and they can put some provision that you don't like into a big government funding bill or a debt limit bill or something else. And then they can say that if this doesn't pass, this other thing that you're not objecting to, it will be Armageddon. The republic will fall into the ocean, the seas will boil, and it will be just the worst thing in the world. And then you can imagine how difficult it is to stand up and say, "I object,” and then you sit down.

But again, unanimous consent is just a request. It's a vote where everybody has to vote yes. The second you can sit down, the Senate has lots of other procedures they can follow to pass things. There's no veto in the Senate. And the only thing that exists like a veto is when you ask for someone's permission to do something, to waive the rules and pass a piece of legislation, for instance.

Kevin Kosar:

You referenced something called a hold. Listeners may have encountered that phrase before when hearing about the Senate being unable to take up something, whether it's a nominee or a piece of legislation — that a senator put a hold on it. We don't know who it was, but a senator did that. First, what's a hold? And when it comes to holds, if somebody does a hold, is it the majority leader's job to go deal with that person, to see if they can bargain with them?

James Wallner:

The hold process is possibly the least understood aspect of Senate procedure in decision making next to I think the filibuster, or maybe the votes on motions to recommit and cloture. But we'll set all that aside for now. The hold process, what is it? It's simply a senator who expresses an intent to object, who communicates to his or her party leaders that they will object to something. You typically do it in a letter. You say, "I'm just notifying you. Hey, heads up Chuck, if you bring this to the floor, I, Elizabeth Warren, am going to object to its consideration." Or, it could be phrased as, "I would like you to consult with me prior to bringing it up." But again, the leaders can ignore that.

And as far as what the hold process does, it's really an opportunity to negotiate. There are no secret holds. I worked in the Senate for a very long time. If you want to know who's holding your bill, you just call down to the cloakroom — that's the party staff on either side of the Senate, where they sit, and basically all the senators from that party congregate in the back of the chamber — you call them and say, "Hey, who's holding this bill?" And they'll tell you, typically. And if they don't, and if you've asked people not to say, then if the leaders want to pass something that you're holding, they will tell people to bring heat on you, to make it difficult for you to hold it. There are no hard and fast rules in the Senate. But what the hold process does is that you hotline something. All the phones ring. I guess when I was there, the phones would ring. Prior to me, they had a little squawk box that would go off sometimes. And then you would have an email and it says, "We're going to ask unanimous consent for this bill." And then you would pick up the phone and you would call, or you would write a letter, a senator would sign it. It would say, "Hey, we're going to object if you do that." And then they wouldn't go forward with that plan, that day. In the meantime, the people who object would be contacted by the people or the committee who wanted to pass that bill, and they would work out their differences. And that's the way the whole process works, it’s an opportunity to negotiate. It's not about killing things in the dead of night. And if it is, I certainly was unable to do it, because we held a lot of stuff when I worked in the Senate, and I was never able to defeat things without anybody knowing it in the dead of night, without expending any little bit of effort.

Kevin Kosar:

So, you've said in many of your publications that we should not fall into a habit of thinking of the Senate as a factory, some sort of hierarchical organization with a neat separation of duties amongst its members and a leader at the top, and its success measured based upon its outputs. Obviously, how the Senate runs is going to be affected by who the majority leader is. How are the majority leaders of recent years, in the way that they run the Senate, the same or different from majority leaders like Mike Mansfield or Lyndon Johnson or those from 50, 60, 80 years ago?

James Wallner:

Well, I'm so glad you referenced Mike Mansfield, and Lyndon Johnson for that matter, because Mike Mansfield really speaks to this factory analogy very well. In a speech that he was intending to give in 1963, he was going to deliver it, but it was right around the time that President Kennedy was assassinated, it was a speech called “The Senate and Its Leadership.” And he ended up submitting it for the record in 1963, on November 27th, for the congressional record — you could look it up there. He also delivered it himself in person in the old Senate chamber as part of a leadership speaker series that you can find on the Senate.gov website. It's really a fabulous address, and it really speaks to how he understood the Senate, and it speaks to how a leader can be effective in a particular environment, doing things that we may not think could be effective today.

But in this speech, he says that the Senate isn't a factory. He says, there's no timecard, senators aren't clocking in and then assuming their position on the factory floor. They are there to participate in an activity as equals. It's the process, it's the...

The topic of this episode is, "What is the Congressional Review Act?"

My guest is Professor Bridget C. E. Dooling of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice.

Kevin Kosar:

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

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

It is to Professor Dooling we turn to learn about the Congressional Review Act, a tool for Congress to abolish regulations. Welcome to the show.

Bridget Dooling:

Thank you so much. I'm glad to be here.

Kevin Kosar:

Before we get into the Congressional Review Act, or CRA, let's start with something basic. What are regulations, and why do they matter?

Bridget Dooling:

Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It's because there's a regulatory line there. You can't see it when you're in the drugstore, but it absolutely affects the way you live.

Kevin Kosar:

Yeah. Regulations really, to a degree, I guess they're specifications of laws, particular applications. Is that a fair characterization?

Bridget Dooling:

Yep.

Kevin Kosar:

Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations?

Bridget Dooling:

Yeah, there's a few ways. One is that you can look at legislation, because that's where Congress tells the agencies what they're allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there's a website called regulations.gov. That's a great place to start, so if you hear that a rulemaking is coming down the pike, that's a great place to go check its status and see if it's open for public comment, for example. So that's regulations.gov. And for rules that are already on the books, you'd want to look at something called the Code of Federal Regulations, which pulls all that regulatory text into one place so you can read it all in one spot.

Kevin Kosar:

Excellent. Now our listeners know. So let's turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA?

Bridget Dooling:

The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule's issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can't be filibustered. And if it's enacted, this disapproval resolution effectively wipes the relevant rule from the books and the regulations revert back to whatever existed previously. Now, if an agency was to set about going back and undoing its own rule, that could take years. Congress can move much faster than a regulatory agency can by using the CRA to basically short circuit that rule.

To be enacted, however, both chambers of Congress must pass the resolution and the president needs to sign it. And because a president's unlikely, very unlikely to sign a resolution disapproving a rule that was issued during his or her own administration, or that of a president from the same party, the Congressional Review Act is especially salient following a presidential election in which the incumbent or same party nominee loses. If that happens, and if both chambers in Congress are aligned with the incoming president, the potential for enacted resolutions of disapproval increases dramatically.

Kevin Kosar:

So let's pause for a moment. What we're talking about is a legislature passing a law to wipe out a regulation. The listener might say, Okay, well, why do we need the Congressional Review Act to do that? Couldn't have Congress just done this without creating an act to create an act?

Bridget Dooling:

Yeah, you're exactly right. Congress could always pass regular legislation to overturn an agency's rule, or another way they could handle it is by placing riders on an agency's appropriation in a way that could prohibit an agency from working on a particular rule. In either case though, that would require a filibuster-proof margin. And that's why the CRA offers an enticing procedural option for lawmakers interested in undoing an agency's rule.

And you mentioned earlier that the CRA was enacted in 1996. I really think it's helpful to think about when the CRA was enacted to understand its context, which was part of the Contract with America Act. Around that time, legislators were looking to reclaim some power from the executive branch, and the CRA was just one of the ways that it did so. This was also in the aftermath of INS v. Chadha, which was the decision that struck down the use of legislative vetoes on logic that this violated presidential presentment requirements. So in the CRA you see Congress coming up with a method that allows them to check the executive branch, but only if the president agrees or if they have the votes to overcome a veto.

Kevin Kosar:

Yes, yes, that's right. In your initial answer, you mentioned that fast track provision, and that's so key. Especially to anybody who's watching Congress in recent years, the struggles to get legislation enacted, the threats of filibusters and holds and other such things — the CRA, therefore, is a quicker way to get done what otherwise might be done through a standard statute. Now I want to drill down for a sec. You referenced an interesting dynamic about when the CRA tends to get used. If you have a new president coming in from a different party, and perhaps if Congress is also different, is that the sort of time when we see the CRA get used?

Bridget Dooling:

Yeah. So I mentioned before that the CRA is most salient following a presidential election in which the incumbent or same party nominee loses, and when the new president is in alignment with both chambers of Congress. This has happened a few times since the CRA was enacted. One of the times was at the start of the George W. Bush Administration. And at that time, Congress used the Congressional Review Act to disapprove a workplace safety role on ergonomics that had been issued late in the Clinton Administration.

The next real opportunity to disapprove regs with the stars aligning in the way we described was at the start of the Obama Administration. The Congress didn't turn to the CRA then. This helped create some speculation that the CRA was a tool that Democrats just weren't interested in using — perhaps because once a rule is disapproved an agency can't go back and do it again until Congress lets them. In the Trump Administration, Congress really leaned into the CRA. They disapproved 16 rules, which was a historic number given the way that the CRA had been used in the past. And then at the start of the Biden Administration, the stars were aligned to use the CRA, but the question was, would Democrats use it? And ultimately they did. They disapproved three rules under the Congressional Review Act, somewhat complicating the earlier narrative that the CRA just wasn't a tool that Democrats like to take advantage of.

Kevin Kosar:

The CRA was little used for so many years. And then some of us told Congress some years back, “Psst, hey, the Congressional Review Act exists, you should use it.” You've got a long scope look at the history of this act. On the whole, does it strike you as particularly effective?

Bridget Dooling:

So that's probably going to depend on who you ask, right? Because it depends on what you're trying to achieve with something like the Congressional Review Act. To the extent that its goals were to pull some authority back to Congress, to oversee the executive in a more assertive way, the CRA clearly has allowed legislators to do that. And they have taken advantage of those tools now in three administrations to disapprove rules. I think we've tended to only think about the CRA — to the extent that anybody does, but if you're listening to this podcast, you might actually be a person who thinks about the CRA — you've tended to think about the CRA as being used only when it leads to the disapproval of a rule.

Now I'm working on some research with a couple of colleagues at GW, Steve Balla and Daniel Perez, that looks much more closely at the introduction of resolutions of disapproval, which is in the hundreds of instances, not in the low double digits, which is what you've got when you sum up the total number of disapproval resolutions that have been enacted. So if you look at the full range of times when legislators introduce these resolutions and then how those resolutions fare in the legislative process, it's another way to understand how legislators use the CRA even when a resolution really doesn't have a chance of being enacted. So there's lots to learn about the way that legislators do use the Congressional Review Act, even when those resolutions don't actually result in disapproval of a rule. And that's part of what our new research is looking at.

Kevin Kosar:

That's fascinating. If I could ask and if it doesn't get too presumptuous before you’ve got all the results in, are legislators able to sway agencies to perhaps rethink a rule by introducing these disapproval resolutions? Is it kind of a dialogic sort of thing, or is it more of legislators just taking a position to please an interest group or folks back home and introducing these? Is there utility there?

Bridget Dooling:

Yeah, I think these are two of the hypotheses that we're interested in looking at, because you're right — the introduction of a resolution is a way to signal both to an agency as well as to other legislators, or to key constituencies, that the legislator’s aware of the rule, that they want to take action to address the rule. And so those are, the two ideas that you lay out there are two that we're looking at in terms of understanding why legislators might reach for the CRA, even when they know that the stars aren't aligned for the resolution to be enacted. I think also in the bigger picture, given all of the attention on other procedural issues in Congress — close to mind is the filibuster of course — the time just feels right to me to look at how legislators use shortcuts when they have access to them and what that ends up looking like as that plays out. With the CRA you have an interesting example of a situation where legislators are somewhat more free to pursue the resolutions that they want to pursue.

Kevin Kosar:

Great. If I could back up for a sec, just to ask about an important but complicated point that may have slipped right by our listeners’ ears: When it comes to regulations that can be struck down through the Congressional Review Act process, can it be just any regulation, any issue area? And can it be regulations of any possible age? You know, something that was done in the 1970s — can that be struck down through the Congressional Review Act?

Bridget Dooling:

Right. So as a general matter, no, there is a time limit on when Congress can use this tool, but the CRA does apply generally to rules. So there's no subject matter limitations or anything like that, but there is a timing limitation. Congress needs to, if it's going to use the CRA to revoke a rule, it needs to do it within a certain time period after that rule has been issued. Now there's been some shenanigans with that, looking at when the clock actually starts for certain documents where it's a little tricky to figure out when that time period starts running for Congress. But as a general matter, you can think of the CRA as a tool that's available to Congress only for a period of months following when a rule is issued by an agency. So as a general matter, they can't reach back decades to use the CRA to undo something that has been settled law for an extended period of time.

Kevin Kosar:

Got it. All right. Well, continuing with this theme about the CRA as a tool, last time I counted, there were something like 180 executive agencies, nearly all of which can produce regulations. And I think the last time I looked at the code of federal regulations, there was something like 180,000 pages of regulations. When thinking about the number of CRAs that have been passed through Congress and signed to a president, it seems quite minuscule compared to that great corpus. Are there other tools or policies that might help Congress, the first branch of government, better oversee regulation? Because as you mentioned at the very start of this podcast, regulations are important. They are specific applications of the law.

Bridget Dooling:

Yeah, you're right. You know, if you were thinking about measuring the effectiveness of the CRA as compared to the number of rules that come out and saying, we're in the double digits on disapproval resolutions that have been enacted, but we've got thousands and thousands of rules on the books — I suppose you could say that the CRA hasn't been effective. However, there's a possibility that its existence serves a tempering function. The agencies know that it's there, and so it's plausible that when they craft their regulations, they're doing it with an eye towards the fact that Congress could come back and revoke them using the CRA or other procedures. So in that sense, the existence of the oversight pathway could be triggering some responses at the agency level even if you don't see that in the form of disapproval resolutions being enacted. Basically if it's doing a good job of keeping the agencies in line, then you hope it wouldn't get to a disapproval resolution that after all is quite wasteful. I mean, the agencies might have gone through many years of policy development and public engagement, setting expectations for what they're planning to do. To have Congress come back at the end and upend that with a resolution of disapproval is really a shame in my mind. I mean I hope that there would be ways to work out the policy disagreements, such that it doesn't often come to that. But in general, and let me just digress a little bit to say that if this is something that interests you and your listeners in terms of potential reforms, the Administrative Conference of the United States has a new project on the Congressional Review Act. Jesse Cross is the consultant and his draft report is available ACUS.gov. So if you're interested in following what ACUS might ultimately recommend in terms of ways to change the Congressional Review Act, I recommend keeping an eye on that project, not least because Professor Cross has put together a wonderful draft report that goes through all kinds of the exact parliamentary procedure that I wouldn't be able to get into with you today. I mean, he's just really done a remarkable job of mapping out how the CRA works in practice.

So that's a great report, but to your point, Kevin, I mean rulemaking is law intensive and super technical. And the policy areas that agencies take on via rulemaking also are intensive and technical. So it's really important that members and committees have professional staff that can monitor what the agencies are up to on regulation, or at least have the toolkit to track down issues when constituents bring them to their attention. So one way to stay on top of what's new in regulation is to sign up for our weekly digest, which gives you a snapshot of the week's most important regulations and analyses about those regulations. And you can find that free digest if you search Regulatory Studies at George Washington University.

Kevin Kosar:

Excellent, excellent. To help Congress's capacity, in addition to them being able to draw upon your newsletter, it sounded like you intimated that having dedicated staff either at the personal office or committee office to be able to keep an eye on regulations would be valuable?

Bridget Dooling:

Yeah, I definitely think that's key. Not least because when constituents come in with concerns, it's better I think if the staff have a framework to think about those concerns and that they know where to look up regulations, they know how to check in on their status, they know which agency is responsible for which regulations, and maybe even have relationships back with those regulators so that they can get answers to the questions that are coming in.

Kevin Kosar:

Well, Professor Dooling, thank you for enlightening us about the Congressional Review Act today.

Bridget Dooling:

Thank you so much for having me. It's been very good fun, and I appreciate the chance.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen 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.