Balkinization: Learning from the AOC Phenomenon

Learning from the AOC Phenomenon

David Super

Alexandria Ocasio-Cortez was a political sensation when she combined organizing prowess, extraordinary skill with social media, and a keen sense of what voters wanted in New York’s 14^th Congressional District to unseat a long-serving Democrat last year. That by itself would guarantee her a prominent place in our political culture. Since arriving in Washington, however, she has proven herself even more of an innovator in defining the role of a Member of Congress than she had as a candidate. This post examines some of what she has been doing and seeks to draw broader lessons about how power is wielded in Congress. The goal most definitely is not to contribute to the trend toward hagiography; on the other hand, institutional innovators of her caliber do not come along often and are worth observing in real time.

First, she has dramatically advanced and deepened the understanding of money’s role in politics. The power of campaign contributors and bundlers has long been widely discussed. Her refusal of special interest contributions, while laudable, was hardly very dramatic: running against a Ways and Means Committee Member in the primary, she was not going to be getting any special interest money anyway; running in a solidly Democratic district in the general election, she did not need any. But her decision to establish a minimum congressional staff salary far above customary levels is profoundly important.

Members of Congress cannot themselves stay on top of the broad array of issues on which they are asked to vote. They inevitably will need staff; the only question is whether the crucial advice will come from staff paid with public funds or from lobbyists advancing their clients’ interests. Every move made to weaken official congressional staff helps special interest lobbyists function as Members’ informal staff. Staff paid a small fraction of what lobbyists make may well wish to please lobbyists whom they see as potential future employers. Yet even aside from that, the constant turnover resulting from low congressional staff pay greatly expands lobbyists’ access. New staff rely on lobbyists to get them up to speed; veteran staff can more readily exercise independent judgment. Staff turnover also erases institutional memory of which lobbyists are dishonest, thus lowering the costs of deception.

More generally, congressional staff inevitably make or facilitate enormously important decisions for the country. Their working conditions on the Hill are appalling, crammed together several to an office with little opportunity for the careful study and reflection momentous decisions require. Paid as little as they are – especially in a city where housing prices are rising rapidly – staff may be forced to live in group houses with similarly little privacy. These are not conditions conducive to making important decisions with far-reaching effects. The alternative, of course, is to hire staff from families who can subsidize them during a two- or four-year sojourn on the Hill. That can lead to a subtler skew in favor of the affluent.

Just as shorting staff pay is penny-wise-and-pound foolish, she has had the courage to start a conversation about how holding down congressional salaries causes Members to seek money on the side, commonly from interests with business before Congress.

Second, Rep. Ocasio-Cortez is contributing to a remarkable revival of the congressional hearing. To appreciate this, one must understand how ghastly and worthless hearings have become. When someone proudly tells me that they are testifying, I assume either that they are a neophyte who does not understand how actually to influence legislation or that they who hope to impress neophyte funders or clients. Whenever possible, I have deflected invitations to testify; I only have testified when those efforts failed. Testifying at congressional hearings consumes a great deal of time but almost never has any impact on actual legislation. Typical attendance is one Member – and that is only because rules require the hearing to stop when only staff is present. Others on the committee may come in the Members’ entrance, catch the eye of the committee clerk to be recorded as present, and then leave without ever taking their seats. Staff install name-plates on Members’ desks only when they arrive and whisk them away as soon as the Member departs, all to prevent photographs of the Member’s desk sitting empty. Staff for Members not planning to attend commonly do not attend themselves. When Members in attendance get their turns, they read windy opening statements and spend their time allotted for questions either creating soundbites for the cameras or throwing softballs to their preferred witnesses (who often write the questions they want to be asked).

Rep. Ocasio-Cortez not only condemned the traditional model of congressional hearings, she set out to change it. Despite being a non-lawyer in a sea of attorneys, Rep. Ocasio-Cortez has approached hearings much as a skilled litigator would. She spends none of her time posturing for the cameras (she can get plenty of air time elsewhere). She follows the litigator’s maxim of never asking a question to which she does not already know the answer. Perhaps as a result, unlike most Members of Congress, she patiently and effectively pursues witnesses trying to evade her questions. Several confirmation hearings, notably the one for former Attorney General Jeff Sessions, could have gone quite differently had senators been more adept with follow-up questions. I strongly encourage my students who want to work on the Hill to take trial advocacy courses to hone their questioning skills. Rep. Ocasio-Cortez has struck pay-dirt enough times already that other Members may start investing more effort into hearing questions. Her performances also, of course, highlight the wisdom of her approach to staff hiring and compensation.

Third, she has shown that there is nothing inconsistent about having strong political views that disquiet many in her party, on the one hand, and being a team player, on the other. In an environment of shameless self-promoters, she repeatedly goes out of her way to praise and elevate other Members. Some of the Democrats that she is having to work with on her committees are extremely difficult; I have no doubt she has copious frustrations with them, but she keeps those to herself. Instead, she presents a relentlessly positive picture of her caucus. The one occasion she criticized fellow Democrats was when she and other progressives felt blind-sided by conservative Democrats’ voting for a Republican motion to recommit. On that occasion and others, she has taken pains to endorse other Democrats’ right to espouse different policy preferences.

Finally, she has shown remarkable creativity in finding ways of being effective as a new Member without crossing more senior Members whose support she needs to succeed. Most new Members accept that their role is to be seen and not heard; a few seek more consequential roles and are rudely slapped down by their elders. Rep. Ocasio-Cortez has shrewdly exploited the opportunities congressional procedure affords new Members, such as asking questions at hearings, while leveraging her high public profile to change the conversation. Particularly noteworthy was her approach to launching the Green New Deal. Sponsoring major legislation is typically a role for full committee chairs; even very senior subcommittee chairs commonly get shoved aside. She, however, couched the proposal as a notional resolution rather than formal legislation. In this Congress, the difference is negligible: nothing remotely like this could make it through the Senate, much less get signed by this President. Most Members would nonetheless want to introduce a proposed law, but she wisely recognized that any legislative vehicle would be only symbolic and so took the route that avoids invading senior colleagues’ turf. Avoiding a formal bill also enabled her and her allies to introduce it quickly, in time for most debates, without having to work through all of the mechanics of their proposed program or negotiate with Members having qualms about this or that detail.

Rep. Ocasio-Cortez is not perfect: she has made some mistakes and inevitably will make many more. It nonetheless is exciting to see a bright, creative, hard-working person take a fresh look at the creaky, inbred culture that has developed in Congress over the years. It also is delightful to see her so openly and proudly treat this process as an education. That may once have been more common, but today the custom of claiming omniscience obstructs honest communication and worthwhile innovation. @DavidASuper1

Posted 9:40 PM by David Super [link]