Repairing the “Broken Branch”: Prospects for Reform in the 110th Congress Eric Schickler Department of Political Science University of California, Berkeley [email protected] Paper prepared for presentation at the Woodrow Wilson International Center for Scholars, Roundtable on “Can Congressional Reform Help End Policy Gridlock?” November 13, 2006. The superb research assistance of Nicole Fox is gratefully acknowledged. I also thank Kathryn Pearson, Terri Bimes, and David Mayhew for many useful comments and suggestions. 1 Public regard for Congress is once again falling to depths that are low even by historical standards. Public opinion polls reveal sinking approval ratings that are comparable to those of the mid-1970s and early 1990s, two other periods of widespread dissatisfaction with the legislative branch. Beyond the mass electorate, veteran Washington observers express dismay at the policy gridlock, partisan warfare, demise of regular order, and perceived abdication of institutional responsibilities on the Hill. If Congress is now a “broken branch,” as Thomas E. Mann and Norman J. Ornstein (2006) have recently argued, what are the prospects for meaningful reform that will remedy its failings? At one level, the conditions appear ripe for major institutional reforms. Numerous critics have highlighted the problems plaguing today’s Congress: policy stalemate over major issues such as immigration and budgeting; declining influence with respect to the executive branch, particularly manifested in lax oversight; a weakened committee system that is failing to live up to its role of providing expert bill-drafting for the entire chamber; the utter disappearance of comity in a House of Representatives in which the majority aggressively restricts opportunities for the minority to influence outcomes and the minority fights back with a focus on scandal and corruption. While Democrats are most likely to recite this litany of charges, many of these problems have their roots in developments during the 1980s, when Democrats still enjoyed control of the House and Newt Gingrich and his GOP allies were the ones focusing on Congress’s institutional failings. The incoming 110th Congress offers a window of opportunity to address some of these problems. Writing one week before the 2006 midterm election, it is expected that Democrats will take control of the House of Representatives and that Republicans’ Senate majority will be narrowed substantially and quite possibly eliminated. As such, in writing this essay, I will assume that Democrats narrowly take control of the House, but most of my argument concerning both the potential for reform and the likely obstacles to it would apply should Republicans retain a very slim majority. I focus on the House rather than the Senate. Minority party senators continue to enjoy considerable prerogatives in the Senate – most importantly, the filibuster – which 2 creates a much different context for proposed reforms in the upper chamber. While the analysis of committee politics presented below applies at least in part to the Senate, an entirely distinct analysis of floor procedure (incorporating the role of holds, cloture etc) is necessary for the Senate. An examination of congressional history suggests that a new majority party that has been out of power for a long period is particularly likely to engage in sweeping reforms. One reason is that the entrenched committee leaders who otherwise can be counted upon to oppose reforms that undercut existing power bases are less of a force. Thus, when House Republicans came into power for the first time in forty years in 1994, resistance to institutional change was relatively low and Speaker Newt Gingrich and his lieutenants were able to adopt a series of reforms, including several that empowered party leaders at the expense of committee and subcommittee leaders. Similarly, most congressional Democrats have entered the House during an era of GOP majorities, and therefore are less invested in existing ways of doing business. An important caveat is that several “Old Bulls” from the pre-1994 era have been holding on to their seats in the hope of eventually gaining (or regaining) committee leadership positions. Earlier reform waves in Congress have also tended to follow periods of mass and elite dissatisfaction with congressional operations. In the late 1880s, the press was full of stories attacking the House for its inability to get anything done amid rampant minority obstruction. Speaker Thomas Reed (R-ME) and his Republican forces capitalized on this discontent in 1890, crushing minority obstruction in the House and firmly establishing majority rule in the chamber. Similarly, the revolt against Speaker Joe Cannon (R-IL) in 1910, which shifted power from the allegedly autocratic speakership to a more decentralized committee system, followed a concerted public relations campaign by Democrats and insurgent Republicans that made “Czar Cannon” a household name. The modernization of legislative organization undertaken in the mid-1940s and the landmark reforms of the 1970s also gathered strength from the widespread critiques of congressional operations that appeared in both the press and scholarly outlets. The possibility that at least a segment of the public will reward reform (or perhaps more to the point, punish the failure to reform) has repeatedly proven an important source of support for efforts to transform Congress. 3 Nonetheless, there are also good reasons to be skeptical that substantial institutional reforms will be forthcoming. First, Democrats have not made internal congressional reform a major campaign theme in the 2006 election. This means that party leaders will face little pressure to follow-through with a reform agenda once they take power. While the congressional page program, congressional ethics, and lobbying reform have been Democratic targets during the 2006 campaign, they have not emphasized internal congressional rules and procedures or committee organization. Indeed, while Democratic leaders experimented with making an issue of the GOP’s procedural abuses in previous years – most notably when Nancy Pelosi framed a minority “bill of rights” in 2004 – they shifted away from this line of attack in 2006 as it became evident that attacking Republicans on other issues resonated more with voters.1 The contrast with 1994 is noteworthy: Republican leaders came into power highlighting the promise to make fundamental changes in how Congress did its business. Several of these changes were included in the Contract with America. The pressure to follow through on these promises generated both opportunities and constraints for GOP leaders. Such pressure is likely to be less salient in the incoming Congress.2 A second obstacle to reform is that Democratic leaders appear to have a limited and relatively clear agenda for the next two years, and they may well view efforts to change the committee system or procedural rules as a distraction that will not help promote that agenda. The top priority is sure to be investigating the executive branch. Assuming they gain a majority in at least one chamber, Democrats will be well positioned to pursue an aggressive investigative strategy. As noted below, securing Congress’s oversight role in the long-term may well require changes in rules and procedures; but in the short-term, Democrats will not need to change the rules of the game in order to challenge the White House. Furthermore, the prevalent atmosphere of 1 See Charles Babington, “Pelosi Seeks House Minority ‘Bill of Rights,’” Washington Post, June 24, 2004, p. A23. 2 While Pelosi and other Democrats have continued to mention specific “fair play” reforms for the minority, they did not emphasize the issue in the run-up to the 2006 election. An encouraging sign is that Pelosi has supported a drive by a so-called “Gang of Four” – Democrats David Price of North Carolina, Tom Allen of Maine, Barney Frank of Massachusetts, and David Obey of Michigan – for a 20-point reform plan that includes more open debate, lobbying reforms, and limits on earmarks (Jackie Calmes and Greg Hitt, “Can the Class of 2006 Save the Democrats?” Wall Street Journal, November 4-5, 2006, p. A8). As argued below, involving some Republicans in the planning will be necessary for such reforms to have staying power. 4 partisan warfare is unlikely to lead Democrats to embrace rules of fair play and “regular order” in the legislative process. Given the daunting challenge of managing a tenuous majority and confronting an opposition party president, Speaker Nancy Pelosi will surely be reluctant to sacrifice any of the leadership tools used by Dennis Hastert and the Republicans. Still, a large Democratic freshmen class comprised of many members narrowly elected to districts that lean Republican may be particularly motivated to support—and even promote—institutional changes. Since several of these members are likely to credit scandals for their victories, the motivation to run on a platform of reform in 2008 will be quite strong. The challenge for would-be reformers will be to find ways to harness the dissatisfaction with congressional institutions in ways that do not run afoul of the immediate interests of the Democratic majority. A close examination of the historical development of congressional institutions suggests some possible approaches to this task. MULTIPLE INTERESTS, COMMON CARRIERS, AND LEGISLATIVE INSTITUTIONS An examination of past efforts to change congressional institutions reveals several patterns that help to illuminate the prospects for reform in the coming years. At a most basic level, congressional institutions can serve a range of member collective interests. One can design a legislature that is tailored to maximizing the reelection chances of each individual incumbent, through such devices as extensive personal office staffs, plentiful platforms for posturing to constituents, and numerous individual credit-claiming opportunities (see Mayhew 1974). But the value of reelection is undermined if Congress itself ceases to be a powerful legislative body. Thus, members may also share a collective interest in bolstering the capacity, power, and prestige of their chamber or of Congress as a whole.