Friday, February 03, 2006

Reforming Congress (for Real)

Just about everywhere one looks these days there are stories about how corrupt, dishonest, and tied to special interests our government, especially Members of Congress have become. I would like to think that it isn’t half as bad as many people, including some Members have made it sound, but it’s a bit hard when stories like Randy “Duke” Cunningham pleading guilty of taking bribes and super-lobbyist Jack Abromoff pleading guilty to several corruption and conspiracy to bribe charges after having cut a plea bargain where he essentially promised to help in investigating and obtaining convictions of Members of Congress for their legal transgressions. (Note, while I cited two “Republican” incidents, please do not start with accusing me of partisan bias, at least not yet. The examples I chose were by far the most egregious of those available as well as the most public. Democrats are by no means any better off, nor were we any cleaner or ethical while we controlled both houses of Congress, I know this already.) While every “scandal” may not be bi-partisan, the issue of corruption and reform is and must be dealt with that way if there is any hope of saving the institution. Click Read More to see what I’m talking about. (Warning: another epic post so click at your own peril)

I can hear the questions now, so exactly how do we save the institution smart guy? Well, first we have to identify the problem, which is not as easy as one might think. Is the problem lobbyists? Not exactly, though they don’t really help anything. There have been lobbyists since the inception of government, if what you mean by lobbyists are people who have specific interests in mind and access to those with power. Money, for sure that is a problem too, but again there is nothing really new about that. In some sense trying to take money out of politics is a bit like trying to get blood from a stone. Try all the alchemy, chemistry, or modern science you want, it isn’t going to happen. Corruption, also bad and needs to be weeded out, but again that’s not really anything new or novel. There has always been corruption and eventually it always gets caught and punished. The problem here is that much of what might be considered “corruption” is not illegal, thus it flies beneath the radar of both the authorities and the public and eventually becomes entrenched as “business as usual.” That leaves us with what I think is the biggest culprit, and also the most fixable; namely, the rules of the institution itself.

Let me explain. Too few people beyond Capital Hill truly understand how the grand institution of Congress works. Ah you say, but we see it on C-SPAN all the time we know how it works, Members get up speak about nothing important for a few minutes and then vote aye or nay, if the ayes have it they win, majority rule, what could be simpler. All of this is true, and without a doubt C-SPAN is a wonderful public service that has shed more sunlight than anything on Congress in the last 30+ years, but like most things you see on TV, what you see is not exactly what you get. I’ll make my point with a bit of trivia combined with civics you don’t get in your average high school classroom. What is the most powerful committee in the House of Representatives? Many of the most knowledgeable folks out there will respond without hesitation Ways and Means. Why? Likely, they say this because they know that all the “money” bills have to clear that committee. Taxes, spending, you name it, if it involves dollars and cents Ways and Means has jurisdiction. Powerful yes, but wrong, they are not the most powerful. Armed Services, one might say. Well, also very powerful, especially in this day and age, as all military and national security legislation and issues are before Armed Services, but also wrong. Last guess and the ultra political junky might be tempted to say House Government Reform. Why, what do they do? Well, technically they can do everything. Government Reform’s jurisdiction is so broad that they can pretty much do anything they want and then some. How do you think the baseball steroids issue got before them? Simple really, they (Tom Davis, baseball junkie) wanted it, so they got it. (Little known fact: House Government Reform is the only committee where the Chairman acting on his own, sua sponte if you will, can issue a subpoena for testimony or documents, all other committees have to first get a majority vote before they can take the same action.) Anyway enough with the guessing, the most powerful committee in the House, by and far is the Rules Committee.

Here’s why: The Rules Committee controls the floor. They control what bills get to be voted on, what amendments can be considered, how much time for “debate” there is, and what the structure of the proceedings will look like. That’s real power. For example, the Rules Committee has a controversial bill before it one where both sides have entrenched positions and lots of disagreement. The bill is 85 pages long and members have submitted 200 amendments. The Rules Committee has several choices as to how this bill will come to the floor. It can offer, which it rarely does, an “open rule,” which would permit all 200 amendments to be considered with say 5 minutes of debate for each side on each one. They can also offer a “modified rule” which only allows a few amendments, selected by the Rules Committee of course, and offer limited time for debate on each one. This is generally the tactic used by the Rules Committee as it maximizes their influence. Typically, the Rules Committee will prevent the most controversial amendments from being considered. In addition, they will often also prevent otherwise popular, leadership opposed amendments from being brought to the floor, as well as prohibit secondary amendments and other parliamentary tricks from being used to add or subtract additional amendments to the bill. Finally, it allows them to structure everything around a central amendment usually called a “managers amendment,” which is offered either by the leadership or the committee chairman with jurisdiction. Last the Committee can use a “closed rule,” which is exactly what it sounds like, no amendments, limited debate, and swift floor action. Admittedly, I have simplified these examples considerably, but as you can hopefully see, the party that controls the Rules Committee controls the House in many ways more effectively than either the Speaker or the Majority Leader.

Conversely, the Senate has nothing like the House Rules Committee. In the Senate the Rules Committee is responsible for different elements of the Senate Chamber and functions more like the House Administration Committee. While the Senate Rules Committee is influential, it is not nearly as powerful as its House namesake. This is not to say that the Senate rules don’t also suffer from major defects. Probably the most notorious is the “anonymous hold,” which allows a single Senator, regardless of party and without requiring a stated public reason, to prohibit floor consideration on just about anything. All that said, the most egregious rules violation in either chamber has to do with Conference Committees. As most may know, when the House and Senate each pass similar, but not identical measures on an issue, the bills go to a Conference Committee, who “works out the differences” are reports a single identical bill back to each Chamber for consideration. Neither Chamber permits the amendment of bills reported out of conference. It is an up or down vote, thus, even if there is one provision that is not acceptable a member has to weigh whether it is worth attempting to scuttle the entire bill simply to make that point. This is why “controversial” measures are often attached in conference to “must pass” legislation such as supplemental spending measures, defense bills or other legislation considered containing essential items of public interest like tax cuts.

I have gotten a bit off track, but the diversion was necessary to make my ultimate point. Namely, the key to reform in Congress is not lobbyists, money, or corruption, but changing the rules in each Chamber to make things more transparent and more difficult to maneuver around. Restricting the floor privileges and gym access of former Members of the House is nice and sounds good, but really means nothing. Even changing the so-called “revolving door provisions,” which prohibit members and staff from lobbying their former employers for one year, is ineffective if you don’t also alter the underlying structure in each chamber. With all of this in mind, I offer the following rule reforms that would be more productive in stopping the perceived ills of Congress than anything that we have seen thus far.

  1. Restrict the availability of the “modified rule” and “closed rule” in the House to only legislation that has been reported out by a 2/3 or greater majority of the committee of jurisdiction. This will force the individual committees to do more of the amendment process before reporting a bill to the floor. Too often committees restrict or limit the amendment process saving the most important and controversial amendments until the floor where they are the only options permitted by the Rules Committee, while other amendments of equal importance are left out. If the Committee fails to reach at least a 2/3 consensus, it likely means there are additional amendments that need consideration to and those should not be prohibited from reaching the floor of the House for debate and consideration.
  2. Prohibit Conference Committees from adding measures that were not previously included in either the House or Senate versions of the bills. This will prevent the last minute tack on of controversial or questionable legislation that cannot be amended. It’s a simple rule; if it wasn’t in the House or Senate bill originally it cannot make a first appearance in the Conference bill. The fact is that many, many of the so-called “earmarks” are added in conference, and thus this rule change would also likely cut down on the current abuses of that practice. This will also force more measures to be worked out on their own merits rather than simply being pulled from the floor and attached to “must pass” legislation at a politically sensitive time.
  3. Require that all committees publish written reports detailing not only those amendments that were accepted but also those that were rejected. While the House has a committee reporting requirement for every bill reported, the Senate does not, hence there are rarely if at all committee reports from Senate originating bills. The House reports are themselves virtually useless because they merely regurgitate in summary form the text of the legislation itself without adding any explanatory statements. Bills that fail to have committee reports that accurately and completely describe the legislation and any amendments either accepted or rejected shall be subject to parliamentary procedures that can effectively scuttle further consideration of the legislation either by the Rules Committee or on the floor.
  4. Elimination of the “anonymous hold” in the Senate. Senators who wish to “hold” legislation must make their intentions known on the record in a floor statement, or via submission of a written statement to the Congressional Record.
  5. Permit the hiring of permanent professional ethics committee staff and limit their removal to only “for cause.” Currently neither ethics committee functions properly, and neither is actually capable of investigating members or fellow staff for fear of political repercussions. The hiring of professional staff and giving them “for cause removal protection” insulates them from the inherent politics of ethics investigations and will allow them do more effectively do their jobs. This will aid in the development of ethics rules, precedent and institutional memories as staff will stay in place for longer periods of time and will be able to effectively monitor and report on the ethics of the Members. Members will still have a final vote on all ethics matters, but this way they will get more objective, non-partisan, honest staff advice and investigation results.

While I sincerely doubt that any of these proposals have a chance in hell of being enacted, I hope that at least someone will raise these issues so we can stop dealing with the fluff like gym access and start at least having a debate about the real issues that are imperiling our legislature and what can be done about it to save the institution. You can’t take the politics out of Congress, and nor should one try, but there are real reforms that are possible that would make the place better, more accountable and more efficient. If only the Members would do this on their own there approval ratings would improve, quality of work and legislation would improve and the institution would be better off than it currently is, regardless of which political party is in control.


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