I’ve been
searching for the Achilles' heel, the
linchpin of Congressional dysfunction -- the one thing, that if you could fix
it – Congress would function better. There are so many individual things that
contribute to Congressional dysfunction that result in gridlock and the body’s
historically low approval ratings.
Some of the obvious
are: intensive partisanship; lobbying and moneyed influencing; gerrymandering;
excessive use of the silent filibuster in the Senate; the so-called Hastert
rule in the House; riders & unrelated amendments tacked onto bills; Senatorial “holds” that
allow any Senator to stall legislation; and many House and Senate arcane rules
and procedures that are used to gum-up the works of the legislative process.
One not so obvious
mechanism of gridlock that is currently embedded in the foundation of the
legislative process is the House and Senate committee system. This system,
which gives overriding power to the majority party, is rarely discussed or
challenged and is completely self imposed by operating procedures of the House
and Senate. There is no Constitutional or legal requirement for the process.
There are some 200 committees and subcommittees in
the House and Senate – 21 major committees in each house and approximately 150
Subcommittees between the two chambers.
If you do any research on how government works you
will quickly be informed that the committee, and even further the subcommittee,
level is where the legislative process begins. As I pointed out in a previous post, the committee and
subcommittee level is where specific legislative language is developed, staff
research is done, experts are consulted, hearings and public meetings are held,
witnesses and interest groups testify and votes are taken to move things
forward. This is where lobbyists and interest groups have their greatest
influence because they are dealing with fewer legislators that they must win
over to their point of view. Also, Congressional committees perform the
critically important function of oversight of Executive branch agencies and
actions.
Obviously, the
committees and subcommittees are where the power structure of Congress begins.
The leaders of these bodies have enormous power to control and manage
legislative development. One thing that you rarely hear about is the details of
how these bodies are structured and how they operate. It is here, at this very
basic level of the legislative and governing process where one, so inclined,
could begin to repair Congressional gridlock.
Party
leaders generally determine the total size of committees and the ratio of
majority to minority members on each of them. House committees vary from 10 to
61 members, with an average of about 40. Senate committees are smaller, varying
from 6 to 28; most have between 16 and 20. Members of both parties serve on
each committee, with the majority party having more seats.
For example, the
powerful House Energy & Commerce Committee is currently chaired by
Representative Fred Upton (R-MI). The Committee includes 31 Republican members
and 23 Democratic members. There are six separate subcommittees. A typical
subcommittee, the Environment & Economy Subcommittee is chaired by
Representative John Shimkus (R-IL). The Subcommittee includes 12
Republican members and 8 Democratic members.
Thus, all environmental
issues (legislation and oversight) that are considered in the House of
Representatives begin their journey first in the Subcommittee and then the full
Committee and are completely controlled by the Chairmen of these bodies and all
matters are decided where the majority party has a significant voting
advantage.
Although House and
Senate rules provide some concessions to the minority party, the bottom line is
that they have no real control over the agenda, all actions are controlled by
the majority party; they are provided less budget and staff resources, witness
testimony is always lopsided in favor of the majority, and most importantly
they are out-voted and out-maneuvered on all differing positions.
In the search for the Achilles' heel of gridlock, this is where we must ask the
question: If the country is divided 50-50 along political ideologies why do we
give complete legislative and oversight control to the so-called “majority”
party?
In the most recent election, Republicans won majority
control of the membership in House and Senate and likewise won Executive branch
control through the Electoral College. But, to understand gridlock you have to
look at and recognize the ideological split of the country. The best measure of
that is the recent popular vote where 48.2% of the population voted for Clinton, 46.1% voted for
Trump and 5.7% voted for others. For discussion purposes, call it a 50-50 split
at best.
It’s not rocket science to understand that if you have a
50-50 ideological split of the population and you are addressing almost any
major issue like climate change, immigration reform, jobs, equality, gun
violence, health care, family planning, minimum wage, infrastructure, etc.; or,
if you are providing oversight of Executive branch agencies, you’re going to
have immediate and intense gridlock if only one party controls the complete
agenda of activities.
While Republicans control the House by 241-194 and the
Senate 52-48, wouldn’t it make sense, considering the political divide of the
country, if the committees and subcommittees had an equal number of Republican
and Democratic members and a shared power arrangement? This would immediately
force bipartisanship and would result in much higher quality legislation and
oversight at the start of the process. Legislation that made it to the House
and Senate floor under this process would likely pass with overwhelming margins
from both sides. Likewise, oversight activities would be much more meaningful
and likely result in constructive changes and improvements in agency programs, budgets and
actions, rather than witch
hunts and political theater.
Under a system of shared committee power, much of the
incentive for gridlock, political posturing and what I call “gridlock games”
(arcane rules and procedures that are used as political tricks by both majority
and minority parties) would be lost.
Another
major advantage of a shared power arrangement would be the allocation and
utilization of staff resources. In 2000, House committees had an
average of 68 staff and Senate committees an average of 46. Under the existing
system the majority party gets the largest number of staff resources and staff
are biased and aligned with their party leadership.
Staff
resources are critical and their main job is to assist with writing, researching,
analyzing, amending, and recommending measures to their committee leadership. Most
staff and resources are controlled by the majority party members of a
committee, although a portion must be shared with minority party members.
If
unbiased staff resources were focused on various issues the process would
likely move more quickly and much less time would be spent on opposition
research and counterproductive activities. Lobbyist and interest groups would not be able
to simply focus their efforts on party or a few key legislators, but would have
to make more reasoned and compromising proposals that would be acceptable to staff
and a majority of committee members.
Many political insiders
that have observed or participated in the modern day committee process may say
this idea of shared power is simply impractical, too contentious and flies In the face
of current political norms. But, before we dismiss the idea, it’s important to
take a historical look at the evolution of the committee process.
In the document, An Overview of the Development of U.S. Congressional
Committees, by Michael Welsh it is noted that, “. . .it is
useful to remember that Congress originally had no standing committees. Its
legislative business was conducted either by temporary select committees, or by
referrals to cabinet departments like Treasury, War and State, and was largely
directed by the budding political parties of the era. Congress, however, soon
discovered that it needed its own institutions -- permanent committees – to
effectively craft legislation, properly oversee the Executive Branch and assert
its standing as the first branch of government. . .
“. . . before 1846,
(when the majority and minority party members agreed to use lists of committee
members cleared by party caucuses). Majority party leaders often could not
control committees. Indeed it has been estimated that between 1819 and 1832 a
fifth of Senate committees were controlled by the minority party; and that
one-fourth were chaired by minority party members.”
Additionally, before
we dismiss the idea of shared committee power we need to take a careful look at
the two existing committees in Congress that already operate under a shared
power arrangement – the House and Senate Ethics Committees.
The Committee on Ethics is unique in the House of
Representatives. Consistent with the duty to carry out its advisory and
enforcement responsibilities in an impartial manner, the Committee is the only
standing committee of the House of Representatives with
its membership divided evenly by party.
For example, the House Ethics Committee rules provide that: “The staff is to be assembled and retained as a professional,
nonpartisan staff. . . The staff as a whole and each individual member of the
staff shall perform all official duties in a nonpartisan manner. . . No member
of the staff shall engage in any partisan political activity directly affecting
any congressional or presidential election. . .” The Senate Ethics Committee rules contain
similar provisions.
It is possible to
envision that rules and procedures for a shared power committee and
subcommittee arrangement could be devised using concepts contained in the House
and Senate Ethics Committees’ rules and those governing Conference Committee
procedures where differing issues are resolved.
In conclusion, Congress,
which is now controlled by the Republican Party, can continue to govern under a
philosophy that half of the population does not exists or it can choose another
path. It can continue to proceed under the illusion that it has a mandate to
ignore the hopes and desires of half of the population or it can choose another
path. It can continue to perpetuate Washington
gridlock and further divide the country or it can choose another path. It can
continue to diminish its power and respect as a major branch of government or it
can choose another path.
A simple change of course
could reap huge benefits to a country that is deeply divided and begging for
new direction.
