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Let Congress be Congress: an agenda for legislative reform.

Everyone agrees that Congress needs to be reformed. Around 150 new representatives, a third of the House, are likely to be swept into office this November on the reform wave. Many are running explicitly on reform platforms. Even the incumbents have approved their own tepid plan for a commission to look into some internal changes. But there is too little agreement about what is wrong in the first place: gridlock, huge deficits, pork, avoiding important issues, and a self-interested attitude are some of the frequent complaints. The root problem is that the United States Congress is a legislature that has stopped legislating.

Take, for example, Congress's approach to transportation. The 1991 highway bill was a monument to pork-barrel politics and congressional self-promotion. One Senator's father had a boat ramp named after him. Localities in Tennessee, Ohio, and Wisconsin got new bicycle paths, and the Staten Island Ferry hauled in an extra $2.7 million. At least two representatives brought home over a quarter of a billion dollars in grants and subsidies for their districts. The bill was a monument to complexity as well: 298 pages of small print text with a 186-page report adding more details.

Compare this with the bill that created the interstate highway system. The Federal Aid Highway Act of 1956 was a mere 32 pages. The section describing how the interstate highways would be funded and built took up only 11 pages. No state, county, or locality was mentioned in the bill. Yet the 1956 Act revolutionized America's transportation network. There is little danger that anyone will make a similar judgment about the 1991 transportation bill 35 years from now: $150 billion will have been spent for little return.

When Congress is not enmeshed in detail, it tends to be lost in generality. The Americans with Disabilities Act (ADA), for instance, requires "reasonable accommodations" for disabled workers as long as this poses no "undue hardship" for the employer. But Congress refused to define these terms more explicitly. Thus regulatory agencies and the courts will make the real law. Congress effectively is turning over its legislative chores, and power, to someone else.

The 1991 Highway Bill represented not a law, but a series of administrative decisions. The ADA embodies good intentions with very few guidelines as to how those wishes are to be accomplished. Congress takes these approaches because members want to control details while avoiding tough decisions. Real legislation is just the opposite: combining precise meaning with general applicability. The rule of law means nothing if the law is so detailed that it applies differently in every place and circumstance, or so vague that one cannot know beforehand what constitutes a violation. Yet Congress is denying Americans their fundamental rights to equal treatment under clearly understandable law. Congress loses as well from this abdication of its legislative responsibilities, for what is gained in detail and warm feelings is lost in the ability to act decisively on major issues.

Yardsticks for Reform

The high proportion of time Congress devotes to non-legislative activities is equally counter-productive. Micromanaging executive agencies ensnares Congress in iron triangles with bureaucrats and special interest groups, robbing lawmakers of objectivity. Making a wholesale business of constituent service is helpful at election time, but diverts attention from larger issues, and creates the perverse incentive to ignore systemic problems. Pursuing disputes through investigatory hearings and independent counsels poisons public debate, making it more difficult to explore and settle legitimate policy differences. The result is that congressmen have become elected superbureaucrats: ombudsmen, micromanagers, and prosecutors.

To achieve real reform, Congress will have to stop doing a lot of what it does today. This is not to say that the President should run the show: quite the opposite. Today Congress gives sweeping grants of legislative power to executive agencies and then attempts to micromanage what those agencies do. A sharper distinction between the legislative and executive roles is needed. Give the president complete control over the discretionary actions of his agencies, and Congress will be far less willing to hand over its legislative powers. The power of executive agencies would be reined in and legislative decisions would be made on Capitol Hill.

The result would not be a continuation of partisan gridlock, but its elimination. Real legislation avoids gridlock because there are clear winners and losers. A bill passes or it doesn't; it is signed or vetoed; a veto is overruled or sustained. Today's laws often merely initiate extended regulatory struggles, leaving factions in a stand- off, and producing increasingly vitriolic and pointless debates.

Some reforms of Congress are more important than others. Structural reforms will be most useful if they encourage legislation and discourage non-legislative activity. Procedural reforms will be most useful if they foster clear decisions on big- picture issues. Several reforms clearly meet these tests.

Term limits. Legislators are interested in pork because it helps them get reelected. They are interested in administrative details because long tenure promotes narrow specialization. Term limits would end congressional careerism, encouraging attention to larger legislative issues. By changing the concept of the legislator's role, term limits are probably the most effective single reform for Congress, and a precondition for other changes.

With a career Congress, voters face a dilemma: they do not like paying taxes to Washington and getting them back in the form of pork and entitlements, but as long as the system is rigged, it makes sense to vote for the incumbent in order to maximize their own take. Congressmen face a dilemma, too: take the easy road to reelection or face the often difficult choices of balancing local and national interests. Take away the career mind-set, and both representatives and voters can make choices based on philosophy and the merits of each case.

Ideally, legislators in a democracy are not professionals, but, as Olympic athletes of yore, skilled amateurs. They must be somewhat detached from governing and far more attached than they are today to the communities they represent. They must feel a stake in returning, not only to where they once lived, but to what they once did for a living. Even if term limits result only in a cadre of professional politicians rotating among state, local, and federal offices, limiting tenure in Washington would help maintain links between legislators and the communities they represent.

Given the likelihood of historic turnover in the House of Representatives, some ask whether term limits are necessary: aren't we already throwing the bums out? Despite the turnover this November, at least two-thirds of the House and an even higher percentage of Senators will be returning. Twenty-, 30-, and even 40-year incumbents remain in key positions where they can frustrate reform and tame the reformers. More important, unless incentives change, idealistic new members will be lured, some slowly and some more quickly, into the same paths that have produced today's problems. Even before they take office, every one of the new representatives elected on a reform platform will be admonished to study the constituent service handbook. Under the current system, those who do so are likely to stay, while those who devote their energies to ultimately more important topics run a far higher risk of not being reelected. Thus, the errand boys and time servers endure, and all too many of the idealists leave.

Session limits. An important reform that might follow term limits is a limit to the amount of time Congress can meet annually: the number of days spent in Washington may be more damaging than the number of years. Congressmen should return, even if for only a few months each year, to their own communities and occupations, not as weekend tourists, but as colleagues of their constituents. By replacing the existing three-day work week with a five-day schedule, Congress could compress their year-round sessions into six months of honest work. A definite conclusion to sessions will also communicate to congressmen that they are representatives rather than managers of the permanent bureaucracy. Reversing the tide of ever longer sessions will require reform of conflict of interest laws, but the goal is a worthy one.

Staff cuts. As a remedy for congressional ills, staff cuts rank just behind term limits. Reducing the size of congressional staff would have productive effects in many areas: reducing incumbent electoral advantages; trimming the length and complexity of legislation (and encouraging legislators to read it); cutting the volume of midnight deals in conference sessions and committee reports; and limiting improper interference with regulatory and other executive branch functions. In short, getting rid of some of the help will force the elected officials to do their job: legislate.

To make a real difference, the cuts need to be large. Bill Clinton has proposed a 25-percent cut, a proposal his congressional party failed to rally behind. President Bush should raise the bid. House Republicans have proposed a 50-percent cut in committee staff, a palatable proposal for them since they are dramatically shortchanged in committee staff allocations. Committee aides, however, represent only 10 percent of all congressional employees. Cutting the House committee-staff numbers in half would reduce the overall congressional payroll a paltry 3 percent.

Besides, committee staffers actually help with legislation part of the time. A congressman's commitment to cutting staff can be judged by his willingness to cut staffs under his own control. Not that proponents of staff cuts should be required to cut unilaterally, but congressmen's personal staffs should be cut along with committee and support staff. The objective of staff cuts is to force Congress to reassess how it operates and to change its behavior. Anything less than a 25-percent across-the-board cut won't be enough to change the way congressmen conduct casework or micromanage executive agencies. Even larger cuts would improve the operations of Congress by streamlining and forcing Congress to concentrate more on its essential legislative tasks.

Balanced budget amendment. A constitutional amendment is the only way to bring discipline to congressional spending. The 1974 Budget Act, which governs congressional budget decisions, has proven to be a machine to increase spending rather than a tool to control it. The Budget Act consists primarily of internal congressional rules, rather than statutes, so the few restrictions that do exist can easily be violated. Most notably, the annual Congressional Budget Resolution is not a law, and thus cannot be vetoed or signed by the President, making the budget process Congress's most outrageous non-legislative exercise.

A constitutional amendment would force Congress to come up with a procedure that works. It is by no means impossible to design a system that either automatically limits spending or forces Congress to make difficult decisions. In fact, two different versions of Gramm-Rudman (which altered the 1974 Budget Act) were quite effective; but when the limits began to pinch, Congress simply changed the rules. The most flawed of those changes, made in the 1990 budget deal, reinforced the "current services baseline" system of automatic spending increases: no votes are required. Indeed, any limitation in the growth of these bureaucratic wish lists is advertised as a spending "cut."

Most of the arguments against a balanced budget amendment just don't wash. We are told, for instance, that the ratification and phase-in period simply postpones action to balance the budget. This argument might have some merit if Congress were making progress in that direction, but aside from Gramm-Rudman, nothing has worked even to limit deficit growth in the last 20 years. Others predict dire consequences when Congress is forced to choose between huge tax increases and draconian spending cuts. This is a congressional version of the "Washington Monument ploy": politically popular programs are the first offered for cuts. Voters do not object to a choice between spending cuts and tax increases. It is congressmen, who would have to make such decisions and then be held responsible, who find the alternatives daunting. The overwhelming majority of states have balanced budget requirements. From time to time, those requirements have forced unpleasant choices, but nowhere has it proved impossible to live with such budget discipline.

One thing that is not needed is the coupling of a balanced budget amendment with an automatic tax increase provision, as was proposed by the House Democratic leadership when the amendment came up for a vote last spring. Given the choice between voting to cut spending--and taking the heat--or failing to act, thereby triggering an "automatic" tax increase which each legislator can disavow individually, Congress will choose the tax increase every time.

The congressional proclivity for tax increases demonstrates the need to include a tax limitation provision in the balanced budget amendment. A requirement for a 60-percent majority to approve any tax increase was included in the Kasten-DeLay version of the balanced budget amendment. In any case, enforcement procedures under a balanced budget amendment should require votes and real legislation rather than automatic devices, which encourage legislative stalemate. If a fail-safe mechanism is necessary, it should be in the President's hands, which would provide a strong inducement for Congress to legislate rather than abdicate.

Enhance the President's role in setting the budget. The President submits a budget to Congress in January and has no further say in determining overall taxing and spending levels. He can influence those only by vetoing individual spending bills. Making the Concurrent Budget Resolution, which sets spending and revenue targets, subject to presidential approval or veto would probably result in lower overall spending and taxation levels. The president's broader constituency lends itself more to those broad concerns than to interest in individual programs. Further, setting spending targets by statute would make it far more difficult for Congress to circumvent the limits. Doing so would require a change in the law, signalling the public that the budget was about to be busted, and giving the president an opportunity to veto the increases. Coupled with a statutory budget resolution, the president's authority to withhold ("impound") spending in excess of legally approved levels should be restored. These reforms could follow or precede a balanced budget amendment.

Line-item veto. A presidential line-item veto would help limit spending, though it is far less helpful in this regard than a balanced budget amendment. (Unfortunately presidents are little more willing than Congress to take the heat for necessary but unpleasant spending cuts.) More important, an item veto would allow the president to limit unreasonable congressional encroachments on executive authority, and would enable him to excise pork-barrel projects and special-interest deals concocted by committee chairmen, or even staffers, against the will of the congressional majority. This would greatly limit the degree to which conference committees, for instance, could approve unpopular provisions in unaccountable secrecy. While the Founding Fathers did not write an item veto into the constitution, it is obvious that they did not contemplate the huge and complex omnibus bills that have become so common today. Again, state experience is instructive. The vast majority of governors have an item veto, and its presence has not irreparably harmed the balance of power between the executive and legislative branches.

Congressional coverage. Congress exempts itself from most civil rights, worker safety, and environmental laws. The attitude of being above the law corrupts the legislative process at its heart. Many incumbents argue that Congress must be exempt from the law so as not to fall under the control of the executive or judicial branches. This makes no more sense than saying that Congress should not be allowed to pass legislation affecting judges or cabinet members, lest those officials become subservient to the legislature. Separation of powers means that Congress makes the laws, not that it is exempt from them.

In fact, the separation of powers doctrine dictates that Congress keep its hands off the administration and adjudication of laws. More narrowly, congressmen cite the constitution's protection against their being questioned outside of Congress for their speech and debate there, but congressional speeches are rarely the issue. Members and employees are required to present subpoenas to the House or Senate. If Congress believes an investigation is political, it can interpose its institutional prerogatives at that point, rather than declaring before the fact that congressmen are above the law. There may also be a case for different treatment of employees with legislative responsibilities, who represent a minority of all Hill workers. The treatment of political appointees in the executive branch is an appropriate model here. Those appointees are covered by all the laws applying to other executive branch employees, but they can nonetheless be fired, with no practical appeal, for policy reasons or violations of confidence.

In most cases, of course, there is no constitutional issue in applying the law to Congress. It is difficult to see, for instance, what constitutional damage would be inflicted by OSHA inspectors visiting congressional offices. Congressman John Boehner of Ohio invited just such an inspection of his office on a voluntary basis in the summer of 1992, uncovering numerous violations of worker safety standards. In fact, most of the OSHA "violations" were clearly insignificant, proving Boehner's point that making Congress subject to the laws it approves would provoke more attention to the problems a well-intentioned law may present. More important, making Congress live under the laws it passes would drive home a point that too many legislators have forgotten: they are not our rulers, but our servants.

Congress should adopt a blanket congressional coverage statute, and House and Senate rules should require all legislation to cover Congress unless there is a specific recorded vote to the contrary. If Congress insists on maintaining its own enforcement offices, as some executive branch agencies are allowed to do, then it should use enforcement standards identical to those used in other government agencies to provide an objective standard for measuring congressional compliance. Court appeals must be allowed, and, most especially, congressmen should not be permitted to escape jury trials. With a jury, Congress is subject not to another branch of government but to citizens. Businesses fear unpredictable verdicts in lawsuits as much as the specific requirements of regulatory legislation. It would be productive for Congress to contemplate the same possibility when crafting vague laws.

Freedom of information. If there is a single law which most needs be applied to Congress it is the Freedom of Information Act. Congress gets away with many abuses simply because no one can find out about them. If congressmen and their staffs were required to keep adequate records and to make them available to the public, many congressional abuses would cease overnight, and questionable behavior would be subject to the informed judgement of voters.

Casework. Helping constituents solve problems with the government is Congress's number-one occupation. But if constituents are continually being injured by the federal government, Congress should fix the systemic problems, rather than patching up faulty operations with ad hoc intervention.

Congressmen should get out of the casework business. Large reductions in staff, especially in personal staffs, are probably the only way to achieve this goal. For those inevitable cases when paperwork is lost, or constituents confused, an ombudsman system, either within agencies or as an arm of Congress, would be far preferable to the current arrangement. Short of getting out, Congress could come clean about casework. All manner of scandalous political favors are covered by the "little-old-lady- with-the-lost-check" ploy. Congressmen should be required to report all correspondence and phone calls to executive agencies periodically in the Congressional Record. If these are all honest casework, congressmen should be proud. If Congress won't take this step itself, then the President should order executive agencies to log and report congressional contacts as public matters.

Fair and open procedures. One of the reasons Congress has difficulty acting on important issues is that its committees, dominated by special interests, are allowed to bottle up popular legislation. When bills do reach the floor in the House, controversial amendments are often blocked. Through a variety of ruses, members are able to stake out positions on both sides of an issue, or even to vote one way while doing the opposite. House and Senate rules should be revised to produce a more orderly, fair, and open process. This can start with setting the legislative agenda.

Congressmen and constituents are frustrated when important legislation gets bogged down. Giving new scheduling powers to a few House and Senate leaders, as some have suggested, would only open the door to new abuses. A better system would give every member a voice, and a stake, in setting an agenda. This could be accomplished by allowing a brief debate on legislation as soon as it is introduced, a system similar to that followed in early Congresses. Simple bills were approved, silly ones disposed of, and complex ones sent to a committee. (The Senate retains vestiges of this procedure: If a Senator objects to referral of a bill to committee, it is placed on the calendar immediately.)

Reviving this procedure would allow the entire House and Senate to determine an agenda openly. In referring a bill, members could instruct committees to complete action within a given time or indicate in a general way how a bill should be amended. This system would reduce the clutter of congressional calendars, and cut down on frivolous proposals, as sponsors would be loath to endure their colleagues' taunts for introducing pointless legislation. The scope and complexity of bills would probably be reduced, since simpler measures would be more likely to be approved. If debating every bill seems too cumbersome, Congress might allow the procedure to be invoked selectively by the leadership of either party or by a significant number of members.

The House Rules Committee, which sets ground rules for debating bills on the House floor, too often bends procedures in favor of the Democratic majority, especially by blocking politically contentious amendments. While some variation in rules may be necessary, a few standard procedures should be developed to cover most bills. Changes in those standard rules should require a supermajority (60 percent or more) vote. Absent an agenda reform like that described above, significant minorities within the House should be given a greater voice in what legislation is considered. Currently, action can be forced on legislation if a majority of the House (normally 218 members) signs a "discharge petition." Since the petition is kept secret, however, voters have a hard time keeping score: representatives can claim to support legislation while refusing to do what is necessary to get it enacted. Discharge petitions should be made public, and the threshold for forcing action should be lowered. There is no reason why the House should not consider legislation supported by, say, one third of its members.

Finally, congressional rules should be revised to make votes more meaningful. The House practice of approving legislation or amendments without votes ("deeming") should be prohibited. Conference committees, which are intended to work out differences between House and Senate versions of bills, should not be allowed to practice "stealth" legislation by deleting provisions both bodies have agreed to or by adding new material that neither has approved.

Cutting committees. Much mischief in pork and micromanagement is conducted by committees independent of the knowledge or will of the majority of members. Several previous reforms have limited committee and subcommittee numbers, but like weeds, congressional committees require periodic clearing. The rearrangement of committee jurisdiction is relatively unimportant as long as the numbers are significantly reduced, perhaps by half or more. This would help untangle schedules, and the resulting broader jurisdictions would likely produce a more integrated approach to lawmaking. Congressmen would then sit on a handful of committees rather than a dozen or more. Among other salutary effects, this would increase the attention congressmen give to each committee position, and therefore reduce the role staff plays.

Term limits for chairmen. Members who are concerned about the concentration of power in the hands of fewer chairmen might consider imposing term limits on those chairmen as suggested by Oklahoma Democratic Congressman Dave McCurdy. While McCurdy's proposal is in the form of a change in House rules, it is the Republican and Democratic caucuses in each body that designate chairmen and ranking members. There is no reason why those party organizations should not move on their own to limit the tenure of committee chairmen, or even of all committee members. Over the course of six years or so, even the most ambitious chairman should be able to advance a legislative agenda. Allowing members to remain chairmen or senior committee members for long periods simply allows the natural process of forging common links with bureaucrats and interest groups--the iron triangle--to overtake the detachment necessary to the legislative role.

Reclaiming Legislative Responsibility

The point of all these reforms is not to reduce the power of Congress--much less to replace it with presidential authority--but to refocus congressional attention to important legislative duties. Only by stopping many current activities can this succeed. Congressmen will argue that the activities we want them to cease are necessary to control the huge federal bureaucracy, and in this they are probably right. The point, though, is not to make Congress give up control and leave bureaucrats roaming at will, but to give Congress incentive to limit the powers they delegate to the bureaucracy, and to reclaim their legislative responsibilities.

These reforms are designed to disentangle Congress and the bureaucracy, to break the iron triangles that encrust thinking and enthrone special interests, and to remind congressmen that they are not a part of a permanent government in Washington, but the humble and temporary representatives of free citizens.
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Author:Mason, David M.
Publication:Policy Review
Date:Sep 22, 1992
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