As listeners know, every two years the House of Representatives is reborn. After the November election each party convenes in Washington, DC. They discuss and debate how they will run their parties, and what their legislative priorities will be. And if they are members of the majority party, they will discuss and decide what the rules of the House should be. Then when they open the new Congress in January one of the first things they will do is to vote along party lines on a new rules package.
A group of scholars and former House members recently released Revitalizing the House (Hoover Institution/Sunwater Institute), a report calling for the House to revise its rules. You can find that report on UnderstandingCongress.org.
To discuss why the House should change its rules I have with me one of the authors, Dr. Philip Wallach. He is a senior fellow at the American Enterprise Institute. He is a colleague and a friend. At AEI he studies America’s separation of powers, with a focus on regulatory policy issues and the relationship between Congress and the administrative state. His latest book is Why Congress (Oxford University Press).
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
Phil, welcome to the program.
Philip Wallach:
Great to be with you again.
Kevin Kosar:
Let’s cut right to the chase. Why should the House change its rules? What are you and the authors of this report trying to achieve or to fix?
Philip Wallach:
Basically, we do not think that the House is working well for all of its members. We think an awful lot of members who are not in the leadership feel that they have been effectively excluded from meaningful decision-making. We feel that they are basically humiliated as constitutional actors, that their jobs as members of the House of Representatives are not giving them an outlet for their ambitions to do good on behalf of the American people. Instead, they are just being reduced to cogs in a partisan machine.
This has been a problem under leadership of both parties. The dominance of leadership is really a trend in the 21st century House, and that is ultimately because of the way the members of the House have set up the rules and allowed other norms and equities in the chamber to evolve. And that means it is within their power to turn things around and to grab more policymaking prerogative back for themselves. So this is really a call to those members who want to be working in policy making and are worried about the trends in the institution and we are trying to give them the tools they need to turn things around.
Kevin Kosar:
All right, just to make sure listeners are clear on what you are saying, members of Congress are constitutional actors. They are supposed to be lawmakers, first and foremost. Yet it sounds like they are not making much law, or at least they are not participating in the process of the lawmaking.
Philip Wallach:
Right. It is the “how” more than the “how much.” The “how much” is a concern. When we look at the 118th Congress, it is looking like it is going to end up being one of the most historically unproductive in modern history. But it is really the how does legislation get made that worries us principally. So that is a matter of, “Are we working the textbook process of lawmaking?” That is a process where members get a chance to specialize as members of committees, where the committee dutifully does its deliberative work and tries to work things out between members who are somewhat specialized in the topic and really trying to do good work, and where that bill gets brought to the floor where there are further opportunities for amendment before it is finally voted on by the chamber.
The textbook process is very rarely followed in the contemporary House. Instead, we see a lot more issues where maybe a committee has done some work on it, or not. Maybe they framed a bill on it, or not. But ultimately what moves is a bill that gets worked up outside of the committee process, vetted by the leadership of the chamber—maybe even by bipartisan leadership through negotiation between top leaders—and then it just moves and gets put up for an up or down vote on the floor without much opportunity for further input by members of the committee or members of the larger chamber.
That can be way of getting things done quickly. There are instances where that makes some sense, so I am not against that in all cases, but that has really become the default. And as part of it becoming the default, it means that a lot of normal members just feel like they do not have any way of getting their input heard other than to continually curry the good favor of the leadership, which is really beneath the dignity of their office. They should be getting to have a say because they were elected by their constituency.
Kevin Kosar:
Right, it sounds like the process itself is not ideal if you are trying to make policy, but it is also not sufficiently participatory, which means it is perhaps insufficiently representative. Now, let’s get into some of the details. The report covered a lot of topics, and we can’t go into all of them, but anyone listening to this can certainly click on the link below the podcast and see the report themselves.
One of the things the report flags as a problem is the congressional calendar. What about it should be changed?
Philip Wallach:
The basic issue is giving members the time and opportunity to work as policymakers. There are very powerful pressures pulling members back to their districts all the time, and not all of those should worry us. There are good reasons for members to spend a lot of time in their districts talking to their constituents, learning what their concerns are, and having a sense for things on the ground. That is healthy, but you also have to come to Washington, work with your colleagues, put your heads together, write legislation, and get things done.
With the way the calendar is set up right now, we have a lot of weeks where the members fly in for some Monday evening votes and then are flying back out Thursday afternoon. That is barely three days of work in Washington a week, which means there is not a lot of time for the policymaking side of things. On the committee side, because it’s such a short week and because committees have not coordinated well, there are a lot of members who find themselves double scheduled such that they just could not be attending all of their committees, having business meetings, or having public hearings. And low attendance of those proceedings tends to sap them of their vitality. If you have a committee hearing and you have three members in their seats and a couple others popping in for a few minutes to ask their question, it really feels kind of perfunctory, like you are not really deliberating together.
We really need more opportunities for the members to sit down to encounter their colleagues and listen to their concerns and then figure out how they can accommodate each other. That is really the heart of representative government and we are just not giving it a chance right now because they do not have the time and opportunity.
So we want to reschedule the calendar such that there are more weeks of the year where members come in really and put in a solid week of work in Washington. I know there are friends at the bipartisan policy center who have come up with some ideas on what a calendar could look like, that would accommodate more weeks and reduce travel days for members. But it’s also a matter of getting the committees to coordinate better such that the members have more of a chance to fulfill their obligations as committee members.
Kevin Kosar:
Right, I often tell people that Congress is a peculiar place. We take 535 people and we throw them into a very large building where they are separated and then we expect them to collaborate. And it’s very difficult for people to collaborate if they’re not in person with one another and if they’re not developing trust-based relationships. You can only do so much through Zoom and in virtual settings.
The report also recommends some changes designed to help committees, right?
Philip Wallach:
Yes, we definitely think revitalizing committees and sort of re-centering the policy making process around them is very important to a better policymaking process. We want to take some steps to make them stronger.
So one of those is to think about how we can professionalize the staff. We think that what’s most valuable is to have really some very experienced, knowledgeable people who get on a committee staff and stick around there for many years.
One way we suggest to help in that endeavor is to change the staffing balance for the majority and minority. Currently, it’s two to one. We suggest making it a little more balanced by changing it to 60-40. The majority still gets to choose more of its own people to put on the staff, but the minority gets a bit of a bigger share. The point is that on the margin, you help somebody who goes from the majority to the minority keep their job and stay working on Capitol Hill, building the institutional memory of this committee instead of rotating out to K Street. That is going to make committees a little stronger.
The other thing that we want to push for committees is sort of the sense that they really can help members work across the aisle and deliberate together. Again, that is a matter of giving them opportunities to sit down, sometimes away from the cameras is a big help. We are very in favor of bipartisan committee retreats or CODELs organized by committees with bipartisan members traveling to different places around the country or around the world such that they can really improve their expertise on relevant topics. They would also have a chance on those trips to get to know each other much better and to really think about what they are seeing together. We have heard from a number of members that those really make a big difference in establishing relationships that lead to bipartisan legislating.
We would also like to see hearings conducted differently. We know that so many hearings are set up just to produce minute-long YouTube clips of spectacular little confrontations. And we’re not going to get rid of that, but we want to set up more hearings that are creating situations where members can ask questions they don’t know the answers to because they want to learn something, or can engage in more of a colloquy with their colleagues—allowing members to be curious and learn, not just frame conflict all the time. Framing conflict is an important thing that Congress does, but it is not the only thing. Committee hearing configurations ought to reflect that.
Kevin Kosar:
It is probably helpful for listeners to think about what is the role of a committee in this overall organization, this thing called the House of Representatives. As you alluded, it is a place where people can specialize. If you are making Medicare policy, defense policy, etc. this is not done by all 435 members gathering together in the big chamber and having a giant argument. Rather, these things are assigned to separate committees where individuals have an opportunity to specialize in that issue area. Not only does that make sense as a matter of process, but it is a necessary adaptation. It would be impossible to run Congress without committees, which our legislature figured out not long after it was started 200 years ago. You can’t have everybody participating in every policy matter; you have to divide up the labor. So anything that can support committees in serving in this function—both as policymaking and oversight—would seem to be awfully important.
You mentioned the resource and staffing sharing. It may come as a surprise to some listeners that a party can win control of the House by only a handful of representatives, but control a disproportionate amount of staffing resources. If I heard you correctly, the resource split amongst committees can be like 60% of resources and staff go to the majority and 40% go to the minority.
Philip Wallach:
That’s what we’d like to change it to right now. It’s 67 to 33 right now—
Kevin Kosar:
—67 to 33, which is grossly out of line with how the Senate does it.
Philip Wallach:
Yeah, and it just means most of those staffers are losing their jobs if they go from the majority to the minority. Of course, it’s not like these people just find themselves woefully unemployed, but Congress really is likely to lose their expertise to the outside. And that’s a shame for the institution.
Kevin Kosar:
Right, and legislators on committees rely so heavily on the staff there. Staff often serve on committees longer than legislators do. They are a source for institutional memory. If you are losing those people, it is like losing a pillar of the organization.
One set of recommendations that I think will resonate with a lot of Americans are the changes to rules to empower majorities to move legislation. Too often, it seems that bills with broad support never get a vote.
Philip Wallach:
We have a number of recommendations that get to this question of who gets to set the agenda.
So let me first stick with the committees. We think it is really important that if committees do run a really good deliberative process and do manage to produce bipartisan legislation that’s gone through a markup process and then gotten support from both parties, that kind of legislation really needs a clear path to a floor vote. That needs to not run through the discretion of the rules committee or the Speaker; it needs to be a sort of a sure thing.
We would propose a new pathway in the rules called “guaranteed regular order,” that would really give committees the incentive to work the process and to act as models of reasonable deliberation. That is one of our more exciting recommendations, which thinks about putting this new tool for getting legislation teed up on the floor.
Kevin Kosar:
If could just briefly interject before you go on with the other ones, just to underscore for listeners that reporting a bill out from committee involves a lot of negotiation. It is exhausting. And all too often committees report out legislation and a bill just sits.
A perfectly rational response for a committee member is to say, “I’m just not going to work hard at this. Why bother? Because it’s all going to be for naught.” So this first recommendation is trying to get at that negative incentive, which discourages committees to even bother to go through the hard work of reporting out legislation that can garner majority support.
Keep going, Phil, please.
Philip Wallach:
Another way an incipient majority can be frustrated is if a committee chairman doesn’t want to report something out. If you could get a majority of the members in the chamber excited about a bill, but the committee of jurisdiction just has a chairman who isn’t with you, you can use the discharge petition. That is the tool that already exists in the rules and we have seen two discharge petitions in this Congress reach the necessary number of signatures, which is 218. It is a potent tool as it exists today, but we think that it ought to be made even a little easier for a majority of the body’s members to get together and push legislation onto the floor, even if a committee chairman is not so excited about it.
So we want to improve the discharge petition in two ways. One is a very little tweak regarding the number of signatures necessary. Sometimes that is 218 when we have all of the seats filled, but sometimes it is less than that. So let’s just make it a majority of the sitting members.
Second, we want to change the way signatures are released to the public. Before 1993, if you signed onto a discharge petition, your support for it was not made public unless and until that threshold of the majority of members of the chamber signing on was reached. At that point, all of the signatures would be published and, of course, the motion could go forward on the floor with that having happened. But while you were trying to amass the signatures, that process would be private. Representative at the time—later Senator—Jim Inhofe of Oklahoma got the idea that this was a bit of a corrupted process. He thought that there were a lot of members pretending to have signed discharge petitions telling their constituents that they had done so without actually offering their signature. That offended him and he launched this crusade—in which he recruited Ross Perot to his cause—saying that this was a big corruption problem and we needed to make discharge petition signatures public on a daily basis. He won that crusade and that has been the rule since 1993.
He said he was doing that to make discharge petitions a more effective tool. In fact, it is really not clear from the record. If anything it seems like discharge petitions successes have been less common since that change to the process. We thought if that was supposed to help the petitioners get their efforts across the line, let’s leave it up to them which privacy regime they think will best serve their cause—if they want to go with the current one word signatures are released daily, they can do that; if they want to go with the pre-1993 rule where signatures are only released after successfully crossing the threshold, let them do that. I think that’s a somewhat modest tweak to the way that rule works, but it would be designed to help incipient majorities in the chamber get together such that they can push their legislation onto the floor.
Kevin Kosar:
I would be remiss if I did not slip in one last question before we ran out of time, which is: when and how can the House change its rules?
Philip Wallach:
Whereas the Senate is a continuing body that goes from one Congress to the next in some sense carrying over everything from the last time to this time, the House is not. The House basically has to recreate itself from scratch every time. All of its members have to be elected of re-elected every two years and so when it shows up on January 3rd, it starts over. Part of that is the new House has to adopt new rules. so every single House adopts a rules package. Most things are carried over from the last House, but there is change—every single new House does make some alterations. The struggles that go into these rules are not always well-publicized or well-understood by the public, but they happen.
When will it happen? We are coming up to the election and right after the election, the members will get into it. Of course, most of these packages are adopted on party line votes, so in some ways, the negotiation is primarily among the members of the majority party. But not all of those members have the same interests within the majority. You can imagine members who want a stronger Speaker versus members who want to give more power to the backbenchers. Those are always ongoing struggles, so it is hard to predict before the election exactly which of these forces is going to be most powerful. But,
They will definitely be playing out immediately after the election. I think we are coming into a time where were very uncertain about how the House operates. We are in the sort of post-Nancy Pelosi era. She had a very clear sense of where she wanted things to go and she was a very dominant leader for her party, but we have moved on. Of course, the Republicans had a great number of difficulties in the 118th Congress, getting themselves on the same page. A lot of those internal struggles playing out in the Republican Party will continue to play out in struggles over rules if they keep the majority. I think Democrats will have their own problems to work out within their caucus as well.
Kevin Kosar:
Listeners no doubt have some memories of the trials and tribulations of former Speaker of the House Kevin McCarthy, who had to battle against insurgents within his own party not long ago in order to become the Speaker, and in the course of bargaining with them agreed to a rules change that made it easier for him to be removed, and thus he ultimately was.
There is so much more to say on this topic. I really hope listeners will dig into this report, which is really well done. But we are out of time for today. Phil, I have enjoyed the discussion about the rules of the House of Representatives and why its rules should be improved. Thank you very much for working on this report and speaking with us today.
Philip Wallach:
A pleasure as always, Kevin.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at AEI. Once again, thank you for listening, and have a great day.
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