The U.S. Congress Either Overreacts Or Underperforms
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THE U.S. CONGRESS EITHER OVERREACTS OR UNDERPERFORMS: THE U.S. POSITIVE TRAIN CONTROL MANDATE, NEGLECTED HIGHWAY POLICY, AND HOW TO IMPROVE THE FIRST BRANCH OF GOVERMENT by Harrison Morton Wadswoth, IV A thesis submitted to Johns Hopkins University in conformity with the requirements for the degree of Master of Arts in Government Baltimore, Maryland August 2016 © 2016 Harrison M. Wadsworth, IV All Rights Reserved Abstract Why, when, and how does Congress pass legislation? John Kingdon theorized in Agendas, Alternatives, and Public Policies that the U.S. Congress is unlikely to act on major public policy issues unless there is an event to focus the public’s attention. Compelled to act in the window of opportunity after a focusing event, Congress is likely to enact hastily considered policy, particularly if a proposed policy solution is already on the minds of legislators. Thus, the Congress typically either overreacts in passing legislation, or underperforms by doing nothing at all. The Kingdon theory is tested against the 2008 enactment of the Positive Train Control railroad technology mandate and found to hold strong predictive value. The theory is then tested against examples of the Congress’s unwillingness to raise excise taxes on gasoline to fund transportation programs or increase federal truck weight limits. Again, the theory is found to be valid, especially when informed by other studies of Congressional action. Lastly, recent scholarship on the Congress, and interviews with individuals with professional and academic experience with Congress, inform a discussion of what could be done to strengthen Congress so that it achieves better public policy outcomes. The lasting utility of Kingdon’s theory suggests its conclusions and lessons should inform any effort to improve Congress. Everyone would be well served by a Congress with the capacity to enact carefully considered policy in a timely manner. The thesis identifies and examines ii several elegant solutions available to enhance the Congress’s ability to make informed, rational policy decisions. The thesis finds that the degree to which members of the U.S. House and Senate feel politically vulnerable, a modern media climate that monetizes outrage, low institutional capacity for policy development, and counterproductive lobbying regulations contribute to the Congress’s tendency towards either stasis or impulsive activity. Dr. Benjamin Ginsberg, Ph.D., Dr. Douglas Harris, Ph.D., Dr. Dorothea Wolfson, Ph.D., and Dr. Jacob Straus, Ph.D. served as advisors for this thesis. iii Acknowledgements Thank you to: My family for nurturing of a culture of curiosity: Harrison M. Wadsworth, III, Toni C. Wadsworth, William N. Wadsworth, Renee C. Wadsworth and my lovely wife, Lisa R. Wadsworth. Mentors in my life not mentioned above who provided me with opportunities to enter public service and the honorable profession known as lobbying: The Honorable Elijah Cummings, Edward Hamberger, John Wetzel, James Houton, Laurie Knight and Ian Jefferies. The lobbyists, staffers and elected officials who sat with me to offer their honest and unfiltered insights on this complex subject matter: Adam Nordstrom, David Black, Chuck Baker, Trent Lott, and those who asked to not be named. Friends who offered their time for constructive criticism, insights and editing of this project: Samuel Seligman, Drew Smith, and Dr. Scott Ladd. The great thinkers who taught me at a young age that the reassurances realized by questioning the common wisdom and setting bold personal objectives, even when doing so results in temporary discomfort, are superior to persisting with a deluded worldview and false self-concept: Carl Sagan and Arnold Schwarzenegger. iv Table of Contents Abstract……………...……………………………………………………………………………ii Acknowledgements…………………………………………………………………………….iv Introduction………………………………………………………………………………...……1 Chapter 1: The Positive Train Control Mandate…………………………………….……..10 Distraction, Death and Destruction in California…………………………………..10 Why Evaluate Kingdon’s Theory?................................................................................15 Does the PTC Mandate Follow Kingdon’s Model? ...................................................19 A Focusing Event Spurs Congressional Action..........................................................25 By Setting an Unachievable Mandate, Congress Set Itself Up.................................31 Overreactions to Focusing Events Offer Opportunities for Victories.....................41 The PTC Mandate and Extension Fit Kingdon’s Theory..........................................51 Chapter 2: Congress Does Nothing.........................................................................................53 What Makes Congress Not Act? .................................................................................56 Part 1: A Committee Refuses to Increase Truck Weight Limits...............................63 Part 2: Inaction on the Gas Tax.....................................................................................74 Kingdon Was Right, What are the Implications?……………………………….......86 Chapter 3: How to Improve Congress.....................................................................................87 Excessive Gerrymandering Makes Politicians Feel More Vulnerable……..……..91 Insufficient Staff Capacity Contributes to Government-by-Crisis……...……..…102 The Media Climate Rewards Showmanship Over Substance……………………108 Lobbing Activity and the Consequences of Regulating the 1st Amendment..….121 Little Member-to-Member Interaction Hurts the Legislative Process…………...142 Who Should Lead Institutional Change? .................................................................148 Conclusions and Suggestions for Additional Research…………………………………158 Design Limitations and the Need for Additional Examples……………………160 v Substantive Issues in Need of Further Examination………………………...…….161 Lessons Learned………………………………………………………………………162 Bibliography…………………………………………………………………………………..165 Curriculum Vitae……………………………………………………………………………..175 vi Introduction How, when, and why does Congress takes action on major policy issues? Is it because the people they represent want a new law? Are laws made after careful, timely consideration of the various policy options? John Kingdon theorized in Agendas, Alternatives, and Public Policies that the U.S. Congress is unlikely to act on major public policy issues unless there is an event to focus the public’s attention. Acting under duress while public attention is focused on the Congressional response to the issue of the day, short-term political objectives supersede long-term policy concerns. Compelled to act in the window of opportunity after a focusing event, good governance is relegated to second-tier status, while any obvious policy that will resolve political tension wins the day. The problem is the obvious solution is not necessarily the best. The Congress is most likely to enact imprudent policy if that proposed solution is already on the minds of legislators as a potential quick-fix. Thus, the Congress is most likely to address pressing public policy issues in a haphazard manner, under a tight timeline. Likewise, it is unlikely to move on important policies unless there is an event to focus public attention. As a result, Congress typically either overreacts in passing legislation, or underperforms by doing nothing at all. The answers to the basic questions of how, when and why Congress takes action are essential for understanding the development and enactment of American public policy. They also have implications for how the American government is able to effectively function as a representative institution that is responsive to the needs of its 1 people. The following portfolio is an examination of how several leading theories and models of Congressional activity can inform answers to these essential questions. In particular, this portfolio tests a theory put forth by John Kingdon in the mid- 1980s founded upon his hands-on experience researching Congress. When will the Congress act? Kingdon found the Congress is most likely to enact significant if pushed to do so. In his words, “that push is sometimes provided by a focusing event like a crisis or disaster that comes along to call attention to the problem.”1 How will they act? Kingdon found the Congress is most likely to act swiftly on major issues in the wake of a focusing event and under duress from the related political pressure they experience. The potential solutions on the agenda are those which government officials, and people outside of government who maintain contact with those officials, consider legitimate. 2 Presidents, Cabinet Secretaries, Committee Chairmen and individual members of Congress can only conceive of a limited set of policies at a given time. Thus, since Congress is most likely to act in the wake of a focusing event, from an interest group’s perspective, being on the agenda ahead of time is a key for success. Why do they act? Kingdon, Mayhew, King, Arnold and others observe that the degree to which American politicians feel politically vulnerable explains their motivation for taking official actions, up to and including passing legislation.3 In short, 1 Kingdon, John W. Agendas, Alternatives, and Public Policies. New York: Longman. (1995): 94-95. 2 Kingdon, John W. Agendas, Alternatives, and Public Policies. New York: Longman. (1995): 3. 3 Kingdon, John W. Agendas, Alternatives, and Public Policies. New York: Longman. (1995): 94-95; 2 the Kingdon theory answers a