Fixing Congress requires fixing how it legislates

Fixing Congress requires fixing how it legislates
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How should Congress work? If you put that question to the average American, the answer would go something like this: Legislators are elected to represent states and districts all over the country. These elected officials have different ideas about what government should do. Any one of them can introduce a bill, then Congress can debate and vote on it — and the majority rules. Then voters decide at the ballot box if they like what their senators and representatives did.

This is the way that high school civics classes often depict Congress — and it is an attractive vision. Our national legislature should be the place where representatives of our nation’s great diversity come together to bargain out solutions. And the public should be able to watch these debates to see whose positions win the battle of ideas. This is a model of representative government as a feedback loop between the elected officials and the people.

The Congress of the real world, unfortunately, operates very differently from this ideal. Its problems are myriad, as I and other scholars discussed in “Congress Overwhelmed: Congressional Capacity and Prospects for Reform.” Paramount among the troubles is that legislative processes have become fantastically complex, which leaves citizens and many media in the dark as to who is doing what.

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Consider the recent increase in the debt limit. For weeks upon weeks, Democrats and Republicans bickered. Team Donkey refused to vote for higher debt without Team Elephant’s support. Democrats feared many swing voters would be angry and were oblivious that higher debt was needed to cover the costs run up during the Trump administration. Republicans took a similarly dim view of voters’ aptitude and added outrage to insult by loudly disclaiming any responsibility to vote to increase the debt limit. Any fantasy of the legislature openly debating and voting on a debt bill was scuttled by a few GOP senators who threatened a filibuster.

Mercifully, the debt limit was raised by $480 billion, enough to carry our country for several weeks. But, few Americans likely have any idea how, or who to laud or blame. The process for legislating, as so often is the case, was utterly baroque and designed to dodge accountability.

If you search Congress.gov you will not find a law titled, “Legislation to increase the debt limit” or somesuch. Instead, the Senate tucked the debt language into a bill titled, “Promoting Physical Activity for Americans Act.” The measure had originally been devoted to exercise policy (yes, really), but through a series of byzantine actions, the Senate swapped out that content and then sent the bill to the House. The House did something head-spinning; it deemed the debt legislation passed when the chamber voted on a rule regarding the permissible debate on three other unrelated bills. 

Confused? You should be! Are you baffled as to how your representative voted? Join the crowd! 

Schoolhouse Rock’s “I’m just a bill”; this is not. I have studied Congress for years and it took me an hour to figure out how this all happened. And were you to grab the average senator or representative and ask, “Can you explain how the debt limit was raised?” they would struggle to explain the process. 

So why is the legislative procedure so complex and opaque? Largely, it is the product of the aggregation of new rules and precedents year after year. The most recent copy of the House’s guide to legislative procedure is more than 1,000 pages long. Which is to say nothing of the Senate’s colossal corpus of precedents governing the chamber’s doings. 

A less appreciated but severe cost of this complexity is that it skews power in the chamber to those rare senators and representatives who master legislative procedure. Leaders such as Sen. Nancy PelosiNancy PelosiHouse passes bills to pressure China amid Olympic boycott House passes bill to strengthen shipping supply chain Overnight Defense & National Security — Biden: US troops to Ukraine 'not on the table' MORE (D-Calif.) Rep. Kevin McCarthyKevin McCarthyLiberals ramp up pressure on Pelosi to discipline Boebert  Cawthorn 'likely' violated rules by bringing candidate on House floor Pressley offering measure condemning Boebert MORE (R-Calif.), Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellOn The Money — McConnell searches for debt deal votes GOP working to lock down votes on McConnell debt deal The Hill's Morning Report - Presented by Uber - Debt limit maneuvers; Biden warns Putin MORE (R-Ky.) and Sen. Chuck SchumerChuck SchumerGillibrand slams committee leadership, Pentagon for military justice reform cuts Build Back Better Is bad for the states  Dole to lie in state in Capitol Rotunda MORE (D-N.Y.) dominate, leaving all other legislators going hat-in-hand to them to plead, “Please help me get my bill through this crazy thicket of rules,” and “Please find a way to let me dodge responsibility for taking hard votes on things like the debt ceiling.”

Reform is desperately overdue. Rank and file legislators should demand the establishment of a joint committee to simplify legislative procedures and to encourage legislators to openly debate and vote. The committee should be given a sizable nonpartisan staff and a few years to draft reforms to be reported to the chamber, and, yes promptly debated and voted upon. 

The time is propitious for legislators to push for reform — many of the chambers’ leaders and most powerful members likely will retire in the next few years. Feeling pressure for rules changes may hasten their departure.

Better rules will make for a better Congress and a healthier representative democracy. And if that is not enough, individual legislators may well find themselves happier being members of a well-functioning legislature. 

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the coeditor of Congress Overwhelmed: Congressional Capacity and Prospects for Reform (University of Chicago Press, 2020).