How Dysfunctional is Congress Now?

David Super

     Both the House and the Senate are currently holding pro forma sessions, with a handful of Members from each party present.  A Democratic representative or a Republican senator calls their respective chambers into session, recognizes a leader of their party for any motions he or she wishes to make, and in the absence of any adjourns the chamber for the next few days.  If the majority’s floor leader makes a motion that has not previously been negotiated with the minority, a Member from the opposition party is on hand to object.  In the absence of a quorum, the proposal dies.  Actions on which both parties agree can be passed by unanimous consent or on a voice vote, with both sides agreeing not to make quorum calls.  Members can submit statements, which their party’s respective leaders move be included in the Congressional Record. 

     Some commentators have criticized Congress for going out of session in the midst of a crisis.  Those on the Left in particular have contended that by sending Congress home Speaker Pelosi has surrendered bargaining leverage with Republicans over the shape of coronavirus relief legislation.  It therefore seems useful to consider how much Congress’s effectiveness has deteriorated with the shift to pro forma sessions.  The conclusion – not much – tells us a lot about the declining importance of individual Members, and the indispensable role of compromise, in our hyper-partisan age.

     Under ordinary circumstances, four entities can block legislative action:  the House majority (by not bringing legislation to the floor or voting it down), the Senate majority (by not bringing legislation to the floor or voting it down), the Senate minority (by filibustering or raising points of order that require sixty votes to overcome), and the President (by vetoing legislation). 

     Certain fairly narrowly defined types of legislative action can proceed without the Senate minority:  budget reconciliation bills, resolutions invalidating Executive Branch actions under the Congressional Review Act, reports of military base closure commissions, etc.  Treaty ratification does not constitutionally require the House majority’s consent, although for practical reasons our current practice often gives it a say.  Confirmations never required the House majority and now do not require the Senate minority, either. 

     Of course, where one of these entities is fractured, others gain power.  The Freedom Caucus’s frequent rebellions empowered the Democratic House minority, allowing Rep. Pelosi to extract large concessions from Speakers Boehner and Ryan.  Much farther back, the North-South split in the Democratic Party in the 1960s made members of the Republican minority crucial to enacting civil rights legislation.  And, unlike the other three leading entities, the President is not absolutely essential to enacting legislation – a resolute coalition of the Senate majority and minority and the House majority can substitute the House minority for the President by overriding a veto.  In hyper-partisan times, however, that substitution is rare.

     In the first two years of the Trump Administration, Republicans controlled three of the four entities needed to make policy.  They enacted relatively little legislation, however, because Senate Democrats ordinarily could block them.  Their two major legislative initiatives – repealing the Affordable Care Act and the 2017 tax law – proceeded under reconciliation procedures that allow bypassing the Senate minority.  They succeeded on the tax bill when they held their majority together; their loss of three votes on the health care repeal re-empowered the Senate minority, which supplied the rest of the votes required to defeat it. 

     Since the midterm elections, Democrats and Republicans have each controlled two of the four entities required to enact legislation.  Controlling the House affects Democrats’ ability to convene hearings, force Republicans to cast embarrassing votes, pass “message” bills and, of course, impeach the President.  But other than taking reconciliation off the table for Republicans this has added little to the power Democrats already had with their Senate minority. 

     This understanding of federal policymaking is, essentially, a version of the vetogate theory updated for extreme partisanship.  Traditional vetogates – such as committee chairs and marginal Members – have ceased to matter in a hyper-partisan and relatively centralized political environment.  Differences between chambers also have faded enormously:  few people besides consummate insiders can name an issue on which Senator McConnell and Representative McCarthy disagree or one that divides Senator Schumer from Speaker Pelosi. 

     Contrasting the ordinary arrangement with the current situation shows some changes, but nothing remotely as dramatic as critics suggest.  The consent of House Republicans is now required to move legislation, but that changes little:  they are unlikely to block an agreement on which Senate Republicans and President Trump have signed off. 

     On the other hand, the current arrangement has effectively restored the filibuster for executive and judicial nominations.  For now, the stampede to pack the courts with conservative judges has paused because Democrats need only make a quorum call to derail a nomination.  Even after the Senate returns to its usual mode of operations, by using all the time available for each nomination Democrats may be able to force Senator McConnell to prioritize unless he can persuade his Members to stay for an extended session.  Even under Senator McConnell’s amended Senate procedures, he needs almost all of his senators present and voting to force a vote on a nominee.     

     The current arrangement does theoretically create more opportunities for rogue Members to exercise power.  We saw this when one Republican insisted on reconvening the House to vote on the third coronavirus relief bill, forcing hundreds of Members to drive or fly back to Washington.  This replicates end-of-session politics in less-partisan times when relatively ideological senators willing to incur their colleagues’ wrath – Republicans Jesse Helms and Tom Coburn or Democrats Howard Metzenbaum and Paul Wellstone – would raise objections that were effectively lethal to legislation in the absence of time to work through the usual Senate process.  These senators would hold court on the Senate floor and sometimes insist on sweeping last-minute changes to bills with overwhelming bipartisan support as a price for releasing their de facto vetogates.

     In practice, however, what rogue Members can do today is limited.  Rep. Massie won no concessions for forcing the House back into session and garnered scathing bipartisan criticism from his colleagues and a caustic tweet from President Trump.  Moreover, Members may only raise objections in person, requiring them to stay in (or return to) Washington.  Who wants to be in a swamp during a plague?

     The opportunities and rewards for obstructionism in the current environment thus are few.  These objections cannot hope to kill legislation:  with the parties so sharply divided, little beyond true must-pass legislation reaches bipartisan agreement anyway.  Nor can it win substantive concessions:  the already-tenuous working relationship between the two parties would shatter if either party’s leadership tried to leverage obstructionism from one of its rogue Members to reopen agreements. 

     Although most Members appear to have returned to their districts, they and their staff continue to work energetically on legislation.  It seems entirely possible that the remainder of the current Congress could continue to function through pro forma sessions.  Pollsters’ predictions about whom voters will blame for an impasse, not expected floor votes, are driving the respective parties to make concessions – but that has been true for several years anyway.  A pro forma Congress likely would pass a continuing resolution this fall rather than individual, detailed appropriations bills – but, again, that is already a well-entrenched pattern, especially in an election year.  And a huge fraction of what one sees in the Congressional Record was not actually uttered on the floor even in ordinary times.

     Making provision for remote debate and voting would be prudent and desirable.  But its absence is nothing like the catastrophe many believe it to be.

     The notion of a legislature in nearly continuous session is not nearly as inevitable as many seem to think.  Only about ten state legislatures follow anything resembling Congress’s model.  Many other countries bring in legislators only occasionally to vote on bills leaders have crafted in their absence.  Most federal appellate judges retain residences some distance from their courts’ headquarters, convening only for a few days of oral argument.

     Having Members assemble in Congress for debate and negotiation makes sense if they come as individuals.  But with neither party having much patience for heterodoxy, the scope of individualism has narrowed considerably.  Negotiation occurs primarily between committee chairs and ranking members, and that works at least as well at a distance.  Perhaps we should add Member of Congress to the list of jobs that this crisis is demonstrating can be done largely by telework.


@DavidASuper1
Posted 2:00 PM by David Super [link]