Congress and the President: Set Your Sights Low

Our article in Roll Call

It used to be fun, but now it’s getting dangerous

by John Wilkerson, David Smith, Nick Stramp

On Tuesday Feb 4, the Washington Post published an article in which retiring representative Robert Andrews (D-NJ) was asked to defend the fact that none of the bills he sponsored over 20 years had become law. A bad measure (bill success) that previously garnered little public attention now seems to be trickling into the mainstream as congressional data becomes more easily accessible…..

More at the Washington Post’s Monkey Cage.

And one more chart, which displays how many more lawmakers are successful sponsors if just the CRS designated companion bills are considered.

Learning to Govern…Again?

Speaker John Boehner was first elected to Congress in 1991. In 1995, he was a member of the new GOP House majority (the first one since 1955) that shut down the government – an event that was widely seen as harming the GOP’s brand and was a major contributing factor to the downfall of Newt Gingrich’s speakership.

Richard Fenno, a political scientist at the University of Rochester and highly regarded congressional scholar, wrote an excellent book on the GOP’s teething lessons that was titled “Learning to Govern.” In it, Fenno argued that because Republicans had been in the minority wilderness for so long, they didn’t really understand what governing requires. Mistakes were made as the GOP transitioned from its historical “bomb-throwing” role to one where they might be held to account for what the government did or didn’t accomplish. Specifically, House Republicans failed to understand the need for a governing majority to compromise.

Former Speaker Gingrich conceded that the shutdown turned out badly for Republicans in 1995. Lesson learned, the 104th Congress ended up being quite productive under divided government – enacting major welfare, health insurance portability, telecommunications, and crime bills, among others.

Fast forward to 2013. House Republicans have been in the majority for 16 of the last 19 years. In the current 113th Congress they have accomplished very little to date, and then topped this lack of productivity by shutting down the government again in October. That recently elected tea party-backed lawmakers might fail to appreciate the lessons of 1995 is not surprising. They weren’t around. Rep. Paul Ryan recent comments about the need for compromise under divided government offers evidence of the learning Fenno described, particularly when compared to the strident, uncompromising views Ryan expressed in earlier years:

“What Patty Murray and I decided was if we require the other person to violate a core principle, then we’re going to get nowhere and we’ll just keep yelling at each other. So instead, what we decided to do was look for areas of common ground and put an agreement around that and that’s what this reflects. So, you know, the fact of the matter is you don’t get everything you want in divided government”

Good for him. But too bad these lessons had to be learned the hard way.

More puzzling is the recent behavior of more senior Republicans such as Speaker Boehner. They were around in 1995. Have they forgotten, or did they choose to ignore those lessons? And if so, why? Boehner’s “Are you kidding me?” outburst suggests one of two possibilities: Either he and other members were misled by conservative activists who promoted the standoff but later revealed “Well we never thought it would work,” or they were coerced into what they probably knew was a losing strategy. This is not the first time that conservative elements in the GOP have pushed positions that have harmed the party’s brand. However, in the most salient of those cases, such as the expiration of the Bush tax cuts, Speaker Boehner avoided the worst of the damage to the party by not invoking the Hastert Rule. Why the shutdown continued as long as it did can’t be blamed on conservative activists or on not knowing any better. It was a failure of leadership, pure and simple.

Shelby County v. Holder: What if Congress had reauthorized the Voting Rights Act for just 5 years?

In Shelby County v. Holder, a 5-4 Supreme Court majority invalidated Section 4(b) of the 2006 reauthorization of the Voting Rights Act. In an earlier post, we noted that the Court’s criticism of the law focused on the congressional reauthorizations process.

There is another intriguing element related to reauthorizations that emerges from the back and forth between the majority and dissenting opinions. Whether the law met the “rational basis” test used to evaluate the constitutionality of statutes was a central source of disagreement among the justices. The majority found that Section 4(b) did not meet this test: “[A] departure from the fundamental principle of equal [state] sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”

Justice Ginsburg, in her dissenting opinion, responded that the majority was applying the wrong standard: “[W]hen Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. ‘It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.’ Katzenbach v. Morgan, 384 U. S. 641, 653 (1966).”

Both the majority and dissenting opinions cite the extensive hearings and documentation produced by Congress when it reauthorized the VRA in 2006, and Justice Roberts feels compelled to explain why that record does not demonstrate a rational basis for Section 4(b): “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”

What is noteworthy to us about this back and forth is that, in trying to address the criticism that the Court has overreached, Justice Roberts brings up the law’s reauthorization schedule: “In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period.” In other words, another objection to the 2006 law is that it is likely to remain in place for many more years.

Did the fact that a law was on a 25-year reauthorization schedule just become a reason for invalidating it? Would the Court have had less reason to invalidate the VRA if it were authorized for just 10 years? 5 years? We doubt that the length of the authorization would have made much difference in this case with this Court, but it is interesting to speculate on whether Shelby County v. Holder will be cited by future courts to justify using a law’s period of authorization as one criterion in evaluating whether it has a rational basis.

If Congress does manage to revise Section 4(b), will the new law’s expiration date help to decide whether it withstands legal scrutiny, especially given the Court’s argument that laws must reflect “current conditions?” In the future, will judicial oversight become one of the factors lawmakers consider when deciding whether to pass permanent laws, or when deciding the length of a temporary authorization?

The Voting Rights Act: Should the Court consider “current political conditions?”

The U.S. Supreme Court declared Section 4(b) of the Voting Rights Act to be in violation of the Constitution because Congress did not use available information about “current conditions” to make the right decision when it reauthorized the Act in 2006. While the reversal of a congressional statute is not unprecedented, the decision in Shelby County v. Holder seems different. There is every reason to think that Congress made a deliberate decision – the reauthorization process included 21 congressional hearings over a 20-month period. Further, the Court does not take issue with the quality of that information – indeed it cites the congressional findings repeatedly in its decision. Instead, the Court finds fault with the results of the congressional reauthorization process:

“If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.

In other words, the Voting Rights Act is unconstitutional because Congress did not do enough when it had the opportunity. The judicial scholars we consulted could think of no previous case where this has happened.

It is interesting to think about the implications of different approaches to lawmaking in light of the Shelby County v. Holder decision. How would voting rights be different today if, in 1965, Congress had passed a permanent rather than temporary law? Where would we be if Congress had allowed the VRA to expire in 2006, for example because lawmakers were unable to reach a political consensus at that time?

The Court may be correct in its implicit judgment that Congress chose the path of least resistance in reauthorizing section 4(b) without making substantial revisions. But that is how electorally accountable institutions operate. To suggest that Congress should have done more is naive at best, and the Court fails to offer a remedy that reflects the realities of lawmaking. Now there is no section 4(b). How is this a better outcome than a workable albeit flawed section 4(b)? Hundreds of covered jurisdictions have successfully “bailed out” of the pre-clearance requirements delineated in Sections 4 and 5 over the past 30 years. They have done so by successfully demonstrating that they care about citizens’ voting rights (ironically Shelby County is not among them).  In addition, numerous jurisdictions outside of the deep south (in New Mexico and elsewhere) must seek pre-clearance.

Though the language of 4(b) may seem outdated, the law still seems to work and it is almost assuredly better than what would exist had Congress failed to reauthorize the VRA in 2007, or had it passed a permanent law in 1965.

Should Members of Congress Care About Disapproval of Congress?

[Guest Post by Michael Ensley]

An oft-noted paradox is that Americans hate Congress but love their members of Congress. Distaste of Congress is so deep-seeded in American politics that it has long been common for candidates (including incumbents) to run for Congress by running against it (Richard Fenno 1977).

In a recent post on the Washington Post, Chris Cillizza cites a recent Gallup Poll showing that 46 percent of respondents approved of their representatives, while only 16 percent approved of Congress. The troubling pattern for Cilizza was that, despite Congress’ apparently poor performance, most members handily win reelection (e.g., more than 90 percent in 2012) .

Cillizza suggests psychological biases are behind this paradox:

There’s a natural tendency to assume your guy or gal isn’t like everyone else — how could they be bad since you voted for them? — and they are doing everything they can to make things better up there/down there/out there in Washington.

Another possibility is that voters elect representatives who share their views. As an amalgam, Congress as a whole is not very representative of any given constituency. In addition to having more representative policy views, members win support back home by steering and claiming credit for government benefits and by providing assistance in dealing with bureaucratic agencies (see the recent article by Jeffrey Harden (Legislative Studies Quarterly)).

But if Fenno is right that “members run for Congress by running against it,” do members have any electoral incentive to invest in the collective outputs and reputation of their institution? Does public disapproval of Congress matter for their own reelection prospects? Or, as Cillizza suggests, is there a bright line between voter evaluations of their own representatives, and feelings about Congress?

Political science research finds that incumbents are not as safe as they appear. One important limitation of focusing on reelection rate percentages is that incumbents sometimes choose to retire rather than face defeat ( Kernell and Jacobson (1983). General turnover in Congress is substantially higher than 10% – often twice as high or more. In 2010, for example, the Republican Party gained more than 60 seats as many Democratic incumbents decided “to spend more time with their families” or were defeated.

Systematic studies of elections over longer time spans also indicate that incumbents pay an electoral penalty when public approval of Congress is low. The question of interest is really not whether members should care, but which members should care.  Jones and McDermott (2009) find that representatives and senators of the majority party win by smaller margins and are more likely to be defeated when Congress is less popular. In our research, public approval of Congress is related to whether incumbents of the majority party return to office under unified control, but also to whether incumbents of both parties return to office under divided control (figure below, from chapter 3 of Congress and the Politics of Problem Solving).

Understanding which members are most likely to bear the brunt of publc assessments of congressional performance may help us to better appreciate why lawmakers sometimes work together to solve important problems facing the nation, and why they sometimes don’t.

A Computational Approach to Tracing the Progress of Policy Ideas in Legislation

Whose ideas and proposals prevail in Congress? Legislative scholars have traditionally studied important subjects such as legislative effectiveness and agenda control by studying the progress of bills. In chapter 7 of Congress and the Politics of Problem Solving we show that using bills for these purposes has important limitations. Bills are “vehicles” for policy ideas. Often the successful sponsor of a bill that becomes law is a committee or subcommittee chair who claims the credit for a collective policy development process involving “must pass” legislation such as a program reauthorization or a law passed in response to a salient external event.

Where do the ideas in laws come from? In the 111^th Congress, HR 3590 as introduced was titled the Service Members Home Ownership TAX Act of 2009. As enacted, HR 3590 was titled the Patient Protection and Affordable Care Act, otherwise known as ObamaCare. The legislative history of HR 3590 is unusual but by no means unique. It illustrates a widely appreciated but rarely studied point: bills evolve as they move through the legislative process. They pick up and shed policy provisions that can range from relatively small adjustments in language to complete bills (in the case of omnibus legislation).

The figure above illustrates a new text-based approach to systematically tracing the progress of policy ideas or provisions (as opposed to bills) in legislation. We use text reuse methods from computer science (think plagiarism detection) to trace similar language wherever it appears in legislation. Figure 1 is based on a comparison of section texts in introduced bills in the 111^th Congress to section texts found in the enacted version of the Affordable Care Act (ACA).  A substantial number of ACA sections match sections in bills sponsored by other lawmakers (of both parties). One of these bills (HR 3692) became law after the ACA’s enactment, but apparently not before some of its original provisions found their way into the ACA.

Whose ideas gain currency? The figure below begins to illustrate how the study of policy ideas as opposed to bills might alter current understandings of legislative effectiveness. Scholars have long noted the importance of institutional position as a predictor of bill success. But when we compare the sponsors of successful policy ideas (whether a section of an introduced bill found its way into a different bill that became law) to the sponsors of successful bills (bills that became law), we find that legislative effectiveness is substantially more widespread. We can ask which individual members have the greatest success inserting language into legislation.

Where do ideas get picked up? The final figure (below) begins to illustrate how we might trace the migration of policy ideas from bills under the jurisdiction of one committee to laws emerging from other committees. In this figure, the migration appears to be toward the committees dealing with important  “must pass” legislation such as health care, banking reform, deefense and appropriations.

As the paper emphasizes, many challenges remain.  But by shifting the focus from the bill as the unit of analysis to the evolving substance of bills, the method does seem to open up a wealth of new research opportunities.

Sequestration: Bad, But Not Bad Enough

Sequestration – automatic across the board cuts in federal spending – was first utilized by Congress in the 1980s as a stick designed to encourage lawmakers to make difficult budgetary choices related to deficit reduction. In theory the sequester mechanism made deficit reduction inevitable – lawmakers could either decide where to cut, or have those decisions made for them. In practice, lawmakers repeatedly found creative ways to avoid both the sequester and serious deficit reduction.

The version of sequestration that did finally have some teeth gave lawmakers reasons to see it enforced. Under the 1990 Omnibus Budget Reconciliation Act (OBRA), if, for example, the defense appropriations came in over budget during the reconciliation process, the sequester mechanism called for cuts in defense spending alone. Prior to that, if one Appropriations subcommittee exceeded its target, the pain was distributed across all discretionary programs. Thus under OBRA, only the shirkers paid the full cost of their irresponsible behavior.

The looming sequester due to take effect March 1 is a page from the old playbook. (Interestingly, its significance seems to have been missed by younger staffers during the debt increase negotiations of 2011.) This time, however, the breadth of the pain is allocated politically as much as programmatically. Defense discretionary programs bear a disproportionate share of the cuts so that (in theory) Republicans and Democrats are equally concerned about its effects.

Many have argued that the sequester is a bad idea – it replaces responsible budgeting with a meat ax.  However, there is little in the record to suggest that the intent of the 2011 agreement was to budget through sequestration. The intent – since orphaned by both parties – was to make inaction unacceptably costly.  In the vernacular of Political Science, the sequester was supposed to make the reversion point so extreme that lawmakers with very different fiscal priorities would see compromise as an attractive alternative.

Things don’t seem to be turning out that way. Why not? We think that lawmakers who hoped the sequester would bring about a deal made a fundamental miscalculation. The reversion point under the current agreement does not reflect the more polarized political atmosphere of the times. When lawmakers’ ideal points are far apart, compromise requires that lawmakers face an even more extreme reversion point. The cost of the current sequester for members of Congress – as it was in the 1980s – is primarily less control over how things happen rather than whether they happen at all. Any compromise to successfully avert sequester must impose just as much, rather than less, fiscal pain. For lawmakers on both sides, it’s less clear than it might be that doing something is a better outcome than doing nothing.

Congress often uses deadlines to promote legislative reviews and updating of policies, but typically the reversion point is the complete and total expiration of a program or its funding. Thus, while the general consensus seems to be that sequestration is a bad idea, perhaps the current version is not bad enough.

E.Scott Adler and John Wilkerson are the authors of Congress and the Politics of Problem Solving (Cambridge 2012)

Lawmaking at the edge of a cliff: It’s how Congress gets things done.

The 113^th Congress has started with a “carnival of contrived crises.”  Observers warn that we should brace ourselves for more of the same over the next two years, while advocates for reforms in congressional operations bemoan that the only time Congress seems to act is when it is faced with a deadline.  Has deadline-driven politics become the “new normal?”   And what does it mean for governing?

Though their role has gone largely unheralded, deadlines have always been a central feature of lawmaking and important catalysts for governing. From annual spending bills to more periodic reauthorizations, renewals of expiring statutes permeate nearly every area of policy – education, transportation, defense, civil rights and criminal justice, to name a few – and for good reasons.

Authorizing programs and appropriating funds on a short-term basis encourages lawmakers to invest in less glamorous but essential legislative work.  Program renewals serve as important focal points for problem solving – for asking whether statutes and agencies are doing what Congress intended and for making programmatic adjustments. The 112th Congress was certainly not among the most productive, but most of its significant accomplishments happened in the course of renewing expiring programs – including the surface transportation, FAA, and defense reauthorizations.  Of course, among those significant reforms were the permanent changes to the tax code enacted as part of the agreement to avert the fiscal cliff.

Congress also uses program expirations to shape priorities in an overburdened institution. Expirations promote more efficient allocations of scarce time and resources. Committees charged with overseeing dozens of programs can defer pressure to act until a program is up for reauthorization.  The legislative agenda becomes more predictable for lawmakers and other stakeholders. Knowing that such scrutiny is forthcoming, agencies have incentives to stay on top of their programs.

Deadlines also help to promote compromise. In contrast to a permanently authorized program, inaction does not mean that things stay the same. Inaction in the face of a sunset means that things may get decidedly worse – a popular program expires or loses funding, taxes go up for everyone, the nation’s credit rating is downgraded.  When the reversion point is worse than the status quo, lawmakers have added incentives to seek common ground.

However, deadlines as a tactic can also cause more harm than good. In 2011, House Republicans took a page from this well-worn playbook when they refused to raise the debt ceiling. This tactic succeeded in focusing legislative and media attention on the deficit. But the partisan roots of the debt ceiling debate also distinguished it from more typical deadline politics. Most reauthorization efforts begin with general support for the program in question and often end with bipartisan support for the resulting legislation.  Here, Republicans tried to use the threat of a government shutdown to force cuts in broadly popular programs. They approached the negotiations not as a good faith effort to address the deficit problem, but instead as a partisan game of chicken.

We’ve seen some softening of the GOP position – some might say learning is involved – since the November elections. House leaders allowed votes on tax reform, disaster relief, and extending the debt ceiling. Sizable numbers of Republicans voted for each and many more appeared to be prepared to do so if needed.  As Sarah Binder points out, these were “must pass” legislation. She’s right, of course.  But what goes often unnoticed how much of the legislative agenda is “must pass.”

The “contrived” deadlines stemming from the debt limit game of chicken may not be ideal from a governing perspective, but they are nevertheless having similar effects for the legislative agenda. They are prioritizing problems (and that would almost certainly be receiving less attention otherwise), spurring discussions and negotiations, and perhaps (time will tell) even promoting progress on important fiscal issues.

The Substance of Lawmaking and the 112th Congress

Much of the recent hand-wringing regarding the current “do nothing” Congress derives from historical comparisons of a rather basic and probably inadequate measure of congressional productivity – a count of laws enacted. In a previous blog post we demonstrated that conclusions about productivity will vary depending on whether counts or pages of laws are the metric. (Other scholars have developed comprehensive measures of law importance based on expert judgments etc.,¹² but to our knowledge have not made those measures available for recent Congresses.)

Here, we dig a bit deeper into the substance of congressional output.