tv Assessment of the 116th Congress CSPAN August 31, 2019 1:22pm-2:53pm EDT
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160th congress -- 116th congress. the american political science association hosted this 90 minute event. association, live coverage here >> thanks to all of you for coming to hear about whether or not congress is still dysfunctional. a fulle will provide background of what's going on on capitol hill. it is no secret to political scientists, nor to the members of congress or the american people, that congress is a mess. congress routinely polls poorly and this trend is bipartisan.
republicanscrats or control congress, most assigned us a failing grade. over the past decade, congress has not once approved in approval rating over 30%. during the 1990's, congress's approval ratings were in the 40's and the 50's. today, they are in the teens and 20's. once thought to be the great repository of america's republican principles, it is now a broken branch. why has congress come to this point? what are the causes of congress's dysfunction? has anything changed since trump's election and the democratic takeover of the house? can this state of affairs be changed? ken congress be reformed -- can congress be reformed? to answer this question, we have assembled a distinguished panel of experts on congress with a variety of perspectives and i will introduce them quickly in
alphabetical order. i will introduce them all so we can launch into their remarks. our first speaker is catherine pearson, associate professor of political science at the university of minnesota. she worked for several years as an assistant to several members of congress. she teaches and writes on congress, political parties and women in politics. she is the author of party discipline in the house of representatives, published by the university of michigan press. it is a very good book. next, molly reynolds, a senior fellow at the brookings institution. her research focuses on the role congressional rules play in affecting policy outcomes. dr. reynolds will be followed by matthew spalding, vice president of washington operations and professor of constitutional governance. dean of the panhandle graduate
school. he is the editor of heritage guide to the constitution and the author of several books. last to speak, but certainly not least, will be james wallner, senior fellow in governance at the r street institute, where he writes on the senate and on legislative procedure and separation of powers. he is the author of two books on congress. most recently, on paul or mentor -- parliamentary war, policy conflict and procedural change in the u.s. senate. we will hear initial remarks, then exchange from the panel, followed by your questions. first up is catherine. >> thank you very much and thank you to the claremont institute. i am happy to be on this panel. we could talk all day about what is wrong with congress but we will limit our remarks. it is important to note that much of what is wrong with congress did not start in the 115th or 116th congress, but
there have been trends building for a long time. it is likely that most of us will talk about the increase in partisanship and everything that has come along with it. we have heightened partisanship, partisan polarization and intense party competition in the congress and that has made it more difficult for members to work across the aisle. of course, there is some real policy disagreement. liberals and conservatives differ on key issues and key values, but there is much more to it than that. there is little ideological overlap between the parties and they differ on issues not related to conservative or liberal values. because of the way voters are less likely to split tickets and the incumbency has dropped to nearly zero despite comments thatspite the fact
incumbents are routinely reelected, numbers of congress do not have many incentives to work with members across the aisle. in 2018, house democrats voted together on average 89% of the time, house republicans on average, 91% of the time. senate democrats, 87% and senate republicans, 92%. these were not even the high watermarks. we are looking at a very partisan house and senate. the rise of party competition is another dynamic. in a narrowly divided country, with fewer voters splitting their ticket, 95% voted for their party's congressional candidates in the 2018 midterm. currently there are only 31 , house districts that were won by democrats in 2018 and trumpet 2016 -- trump in 2016. not have incentive to work with
-- not only are we narrowly divided, but members do not have incentive to work with the other party in this trend of partisanship has been building since the 1970's. fewer members today are institutionalists than in previous years and that goes for members of both parties. my book on party discipline in the house of representatives shows the ways in which party leaders reward members for party loyalty. not even necessarily for having good ideas, although that can help, but party leaders are more like me to give those that vote -- likely to give those that vote with their party, use partisan rhetoric on the house floor, support their party in efforts when it comes to committee transfers, when it comes to getting legislation on we know that party loyalty is very important. most members have incentives that are constituent based to be loyal. and party leaders at reward the loyalty. this has been combined with a decline of committee power and expertise and the rise of intraparty factions. we all know the story of the reforms of the 1970's, which increased the power of party
leaders in the democratic caucus and the rank and file members at the expense of committee chairs. for a long time, political scientists talked about power as a pendulum. committee chairs were powerful during the textbook era. leaders became powerful in the 1970's, intensifying in the 1990's. today, as we have seen with speaker ryan and to some extent, speaker pelosi, leaders are struggling with their own intraparty factions. committees do not have what they need, but leaders have a hard time, because many of the incentives have changed. more members of congress are interested in tweeting out symbolic policy positions than being institutionalists. accompanying this is a decline
in regular order. members have fewer opportunities to take part in the legislative process with many more closed rules, whereby they are not participating in committees and it is easy to see how members are incentivized to communicate rather than legislate. another problem with congress is its lack of responsiveness to public opinion and major problems. that is not to say that the 115th congress did not pass some important provisions. the extended antiterrorism surveillance authorities, rollback dodd frank relations, passed a law fighting opioid abuse and criminal justice rehabilitation. if you look at the most recent pew survey on the problems facing america that people care about, no matter what their position is, it is clear that congress is not responding to these issues. immigration, health care, climate change, guns.
whatever policy direction we are talking about. another thing i want to focus on briefly, which is not a new problem and congress is doing better on, but is still a problem is that congress is not representative of the u.s. population when it comes to gender, race and ethnicity, and class. we know from political science research that this descriptive representation is linked to substantive representation. racial minorities, women who are represented by members of congress share characteristics with them are more likely to be engaged in the process. the 116th congress is the high watermark in terms of representation, but still falls well short of the population, with the house comprised of 20% with 36 new women, but republican women are dramatically underrepresented. there are 44 latinx members of congress.
55 african-americans. underrepresentation of every group except for highly educated older white men. when it comes to staff capacity, it is more difficult to maintain -- retain quality staff and staff are not diverse. along with others on the panel in this room, i am part of a task force on congressional reform. one of the things the task force has been looking at is staff retention and diversity. we know that there is more turnover than there used to be and staff members are leaving to do things that are more lucrative, including lobbying and interest groups. many of these trends have been brewing, so we can't say that they all changed with the election of president trump. in many ways, they have been on display and the weakness of congress as an institution has been on display. now, we don't just have members of congress communicating via
twitter, the president and members of congress are communicating with one another via twitter. it is unusual to have a president who is so unengaged in policymaking, particularly under unified party control in the last congress, we saw how that hurt republican efforts to get a lot of the policy priorities enacted with key exceptions. in the 114th congress, we saw republican party leaders struggle with intraparty factions. many observers expected if speaker pelosi became speaker again that she would enjoy some of the high party unity she did back in the 110th and 111th congress. while it is true that democrats routinely voting with one another and against the other party, she is struggling with intraparty factions to a much greater degree than the last time she was speaker.
more reminiscent of the boehner and ryan era. turn to howell congress might be reformed. there is a task force working on this issue, but i think it is clear that one of the things congress needs to do is increase its own capacity. that involves opening up staff, paying more, training them better, giving power back to committees, restoring, within reason, regular order some more -- so that more members can be involved in the legislative process, at least in the house of representatives, and increase staff transparency, diversity, and training. there is no clear reform that will necessarily decrease partisanship or give incentives to bolster their party reputation and their own reputation with regards to the
other party, thinking about the next election. it is the case that there are many partisans who formerly served in congress on both sides of the aisle who were also institutionalists, who deeply cared about the institution, valued its tradition. i do think part of reform should be to cultivate a sense of loyalty to the institution in addition to party. that could be also through additional training or more sessions with former members of congress to share their own experiences, particularly those who were institutionalists and active and involved policymakers. >> thank you, and thanks to the claremont folks for having me. i share many of kathryn's diagnoses of what is wrong with congress. i won't dwell as much on some of them.
kathryn has talked about the consequences for congress of the particular combination we are currently living with of high polarization and also high macrolevel party competition. the idea that both parties can frequently look at the next election and say and reasonably expect that their party, if they are in the minority now, might find themselves in the majority after the next election. this profoundly affects the incentive that members have to work across the aisle. it also means that there is a greater incentive among the members of the majority party in congress to put bills on the floor that they know will fail, simply to be able to say to members of their own party and the electorate, to interest group allies, that these are the kinds of things that our party would do if we had more power,
and the ability to legislate after the next election. this is especially true under divided government, like we have now. but, it can also be true under unified party government. when you think about things like, why did republicans before 2017 spend a lot of time in the house taking votes to repeal the affordable care act when they knew that was not going to be a productive legislative endeavor at that moment? i think it is in part because the incentive of this combination of polarized parties and high-level level, macrolevel party competition incentivized doing that kind of -- spending floor time on things they know will not pass. kevin touched on increasing nationalization of our politics. this has profound consequences for the electoral experience of individual members.
their electoral fates become much more attached to national political forces than it once was. kathryn pointed out that voters split their tickets at far lower rates than they once did. one of my favorite pieces of data on this point is that in 2016, it was the first time since the advent of the popular election of senators in the 20th century where every state in which there was a senate election in 2016, the party that won that election was also the party that won the states ' electoral votes in the electoral college. there were no states in which that result flipped in 2016. because voters are splitting their tickets at much lower rates, that gives individual members less of an incentive to cultivate what we might consider an independent branch, to work across the aisle and attract voters who identify with both parties.
the nationalization of politics has also meant that our system is increasingly presidency centered. as kathryn pointed out, many of these trends are not new to the current occupant of the white house, despite the fact that, particular for those of us in washington, it does feel like the president is at the center of every media cycle. i think here in particular, going back to the early 1970's, when we saw a number of high-profile pieces of legislation, like the congressional budget act, some reforms to oversight of the intelligence committee, that sort of thing, we saw them passed large bipartisan majorities, because congress all had a reason to work together.
as the president has become an increasingly central and polarizing figure in american politics, it can be more difficult to build support for something on institutional grounds in congress. my favorite example of this from recent years comes from 2016, in in a slightly different era of trade politics than the one we are living in now. in 2015, when president obama was lobbying congress on trade promotion authority, seeking the ability to negotiate what would be the tpp, someone on paul ryan's staff called the white house to ask that obama stop asking congress to give him trade promotion authority. ryan did not want republicans to think they were granting obama something special, even at that point republicans also wanted the trade agreement. this idea of merely identifying
the issue with the president was making it harder to build a legislative coalition. kathryn talked about the decline in congressional capacity, particularly the drop off in staff levels on house committees and in support agencies, starting after the republican takeover of the house after the 1994 election. there are various incentives presented to staff to increasingly pursue opportunities off the hill and that does make it more difficult for congress to have the expertise it needs in house to do work well. that increases the power of special interests and lobbyists. a couple things that have changed since trump's election and democrats have taken over the house, the lesson i would take from our first two plus years of the trump administration and the first eight months of the democratic
majority. so particularly this year, we have seen the challenges presented in doing congressional oversight when going to court is an increasing part of the strategy. one thing we expected to see and have seen in this congress is heavy reliance by the house on legal avenues, things like subpoenas, contempt citations are part of the approach. we knew going in that this was not a particularly expeditious approach to oversight. that has been borne out. some of this has to do with the stonewalling of requests from congress. but that is not the only part. i think that democrats also have reasons why pursuing a legally focused strategy beyond the fact that the administration has pushed them into that corner. kathryn talked about intraparty
division. when your party is divided on some of these oversight questions, and i think particularly about impeachment, there is an advantage to taking some of that fight outside of the congressional arena so it is still happening, but your members are not being forced to regularly in a place to highlight division. i think other changes in the process made it harder to get other tools to try to reign in what the executive branch is doing. i'm thinking about changes in the appropriations process. the way in which the rise of large omnibus spending bills makes it difficult to use the power of the purse to limit particular actions by the executive. a second trend to note from the current congress is, period ofly in the
unified republican control in 2017 and 2018, the increasing importance of items that cannot be filibustered in the senate. in 2017 and 2018, more than half of the votes that congressional quarterly rated its key votes in the senate to were votes that involved limits on debate or on which only majority support on culture was received. things likee nominations, which all need majority support, but also things like use of the congressional review act and the use of reconciliation in 2017 and the increasing importance of legislative vehicles in unified government. many of these in the first two years involved the republicans, trying to advance when they had
a narrow majority in the senate. but we also sign minority party senators, either on their own, or in the case of a congressional review act resolution on short-term health insurance or cooperation with majority party senators, in the case of yemen, using these procedures to force votes on things they cared about even when the party leadership in the senate did not necessarily want to see those things on the floor. the last trend i will note during the congressional is we are certain to see important consequences of previous delegations of power to the executive branch by congress. we have been on a long, continued path in which congres, continued path in which congress has delegated substantial power to the executive branch, often because it is easier to give the president the responsibility to do something than for congress to do the hard work of retaining the power for itself.
historically, those were brought under it some sort of congressional review process. i am thinking about the war powers act, the statute giving the president the power to declare a national emergency and subsequent congressional allow, the procedure to congress to review arm sales. many of these review provisions weakened in the mid-80's when the supreme court ruled that the veto was unconstitutional, and requiring congress to exercise powers in the form of a joint resolution rather than a concurrent resolution. we are also learning in recent years that highly partisan congress is not necessarily well-equipped to use these tools. both because of the need to get vote to override a veto when they don't want to use them
and because the procedures have become an attractive way to force issues. i am thinking about something like the votes that the senate took this year. kevin covered a number of things i would point out where congress might be reformed. i agree wholeheartedly that the changes we would want to make the institution work better require big changes in the underlying political system or the incentives that members of congress face. i agree that capacity reforms are one, perhaps more feasible avenue, and i also think we should think about potential procedural changes that encourage the off the floor processes in congress that are continuing to work somewhat well, even if they are paired with more restrictive policies. -- restrictive, on the floor, processes. here i think about the use over the past several years of what we have called mini bus
appropriation bills. having the house appropriation committees develop spending legislation, like they historically have, but then packaging those bills together into small packages for congressional consideration. it is an interesting compromise that congress needs to have struck between making sure it continues to work, but also recognizing the political incentive. >> thank you. thank would like to the claremont institute. i know joe put a lot of work into these panels as well. i would also like to point out that the work of the claremont institute is supported in many ways. claremont review is back there and it is one of the best publications in political thought today. i would point people to their online journal, "the american mind.
here we are once again. joy oh joy. congress is still declining. it is declining at an increasing rate. regardless of who controls it, republicans or democrats or some division thereof. you wonder whether there is something larger afoot. it seems to me that you can't understand congress without understanding the relationship between congress and the modern executive. indeed, we also need to throw in the supreme court for good measure because they are now involved in lawmaking. how the branches interact, their institutional roles as institutions under the constitution and how that has all changed. it seems to me the decline of congress is a problem, but in more ways is a symptom of a larger problem, which is what i would like to backup and take a deeper look at, and that is the
rise of modern bureaucratic rule, or the administrative state. that seems to be the change driving this transformation as self-government is being overwhelmed by this new bureaucratic way. congress, having created that thing, is now suffering from its successes. for the american founders, the idea of a constitution preceded , antecedent to government. government is a creation of the constitution. constitution was created by a people who constituted -- the constitution comes from a people who then constituted government. a sovereign people have rights by nature, delegate powers, those powers are separated and structured, checked and balanced. that will allow majorities to rule while protecting minority rights. at the turn of the last century, american progressives began to
reinterpret that relationship in response to new conditions. rights are not understood to be natural, but social and determined by history. so grow and adapt. compact will be a new between the government and the people and the government would play the key role in determining those conditions, thus rights and the limits and expansions of government. so, the replacement of rights grounded in nature by history made it possible to replace politics with the rational administrative state. here i have to point out the great work done by john marini, especially on his book. someone who has thought long about this question, and i want to think about it terms of congress and especially the political branches. as the law became a tool for
social reconstruction, government became an instrument for progress. the founders went to great lengths to preserve and limit government through public institutions and separation of powers. progressions held that the barriers erected by the founders had to be removed or circumvented so government could be unified and expanded through the combination of powers, which would concentrate authority and direct actions toward achieving more and more progress. politics would remain in the realm of expressing opinions, hence the continued relevance of congress, but the real decisions and details of government would be handled by administrators, separate from politics. hence, the separation of administrative politics throughout progressive writing. the constantly changing structure of this administered of state required to be managed, hence the theory of leadership.
as a footnote, hegel and max , and woodrow wilson. knighted state of been moving down this -- united states has been moving down this path in fits and starts from the initial progressives through the new deal expansions, but the administrative state was not institutionalized in a permanent way until the great society and its progeny. before that time and until that time, america was essentially governed under the constitution, but was administratively decentralized at the state level. when administration is nationalized, it creates a new source of conflict between the executive and legislative branches. at first, progressives liked to look at the presidency. presidents pushed congress to expand administrative powers. congress was reluctant to do so. they remained a defender of decentralized administration. but congress, seeing the writing
on the wall, adapted. between 1960 and 1978, they and 1978, they passed more regulatory regulation the end in all of his history. allocating powers in the form of broad regulatory authority to bureaucracies and agencies, all of those things they had created. since 1970's, congress has been reorganizing itself continuously. committees, subcommittees, leadership roles, in a way that could oversee and interact the modern bureaucratic apparatus. congress thought to develop the powers over the administration. the best-known example of that is the legislative veto. a good and perhaps, ironic example is the national emergencies act, attempted to control presidents, particularly richard nixon, which originally, the congress could override with
a majority. the supreme court declares that unconstitutional. of course, that is a piece of legislation donald trump is using to build his wall, congress having delegated the authority to him. over time, congress has largely focused less on actual lawmaking and more on oversight and bringing regulatory relief from the bureaucracy. ex post facto legislation, we might call it. when congress does legislate, it can be extremely broad in power in various places, who for all intents and purposes do the things we would associate with law and lawmaking. indeed, what goes much for law, or at least, the back-and-forth of lawmaking nowadays, is not in the legislature at all, they which i mean on the floor where
legislators actually liberate. -- deliberate. it is between the executive and leadership in closed door small meetings, but more interestingly, between the executive and administrative application. that along with things like the chevron doctrine show how deeply engaged the courts are in maintaining not the constitution but the administrative process itself. today, the modern congress is a -- almost exclusively a supervisory body exercising limited oversight over administrative policymaking. thus, congress, which used to be called the keystone of the washington establishment, is replaced by the bureaucracy, the keystone of the rational state. all of this has changed how the branches operate, since they -- think of the founders understanding of separation of powers. contrary to the naive notion that bureaucracy is neutral and scientific, it turns out to be hard to keep politics out of politics. as a result, much of executive
legislative affairs historically is a fight over control. early progressive presidents had grandiose ideas. fdr did much to legitimize the administrative state. it up under the new executive office of the president. during the first part of our bureaucratic history, congress had the upper hand. indeed, executives, especially since 1968, posed the greatest threat to the administrative state, fighting to control and possibly diminish it. by 1984, exactly one party control of congress change for the first time in 40 years, presidents had come to figure out the allure of bureaucratic power. as congress expanded the bureaucracy, creating a number of agencies, delegating lawmaking authority, losing control of the details of , presidents came to
realize they could actually use and lead the bureaucracy through a combination of executive discretion and written law and willful neglect and disregard for their own policy, with or without the cooperation of congress. as the constitutional rule of law centered on legislation gives way to administrative or executive discretion, so the administrative congress of the 1970's and 1980's was replaced by the administrative executive in more recent years as a branch that dominates our politics. this seems to be the case, where congress has sold the rope with which they will hang themselves. having delegated significant legislative power, they now find themselves far removed from the action. they try to sustain their powers through committees, oversight. the distinction between general lawmaking and execution has been
overcome to the advantage of the power closer to the deed, as machiavelli would say. it turns out bureaucracy is a greater threat to legislative power than executive leadership. this congress seems to me as a reflection of all of all the same problems, though torn by divides in the democratic party. on the one hand, it is still small, petty, no serious agenda beyond omnibus spending, but on the other hand are those vocal members who have been driven more by national, ideological debate. that does not surprise me, given given the imbalance of power and donald trump. having said that, it seems to me that donald trump has been restrained in all this. which is to say he is not pushing the constitutional edge of executive powers as much as using powers delegated by congress.
the mercy powers act is an example. so are the traded powers he has been using. and the president of one branch appealing to the other to challenge the third, i.e. congress with the courts. pre of course, was a republicansed by under the obama administration. so, my conclusion, to be brief, bureaucracy can accommodate the executive. and executives, it turns out, can accommodate and use and erect the bureaucracy. that is quite problematic. although it suggests to me that it might be and probably is the best option for checking the administrative state and challenging its legitimacy is going to come from the executive and not congress, even though congress should have powers over the administrative branch. or the fourth branch. the larger problem is that bureaucratic government has failed to represent democracy
and the rule of law. here i mean those old-fashioned things passed by congress. the admin straight of -- the administrative state, bureaucratic government, amounts to a new form of rule, less democratic, less subject to consent, and it makes government less representative and us, as a result, less self-governing. it has transformed and disfigured our constitutional institutions. separation of powers weakens the check on abuse of power, does not work to create any governing consensus of the american people, and together, the political institutions no longer pursue the common good. i am tempted to say that congress, seemingly oblivious to their own demise, fiddles while rome burns. it may be excused as a great scholar said of the new political science infancy, it
may be excused by the fact that it does not know it fiddles and it does not know that rome is burning. >> thank you, thank you to the claremont institute and to joe for organizing this panel. thank you to my fellow panelists. it is always a treat to appear aside such imminent people. i try to only appear in public alongside people who are smarter than me because i hope it will rub off and people will assume that i am such an imminent persona as well. thank you for letting me join you. thank you to the audience. it is friday afternoon. what better place to be in washington dc in august talking about congress? i love congress. family probably is a little tired of me talking about congress. but i love it. thank you for being here and letting me talk about it a little more.
as i approach these questions that we have been asked to consider, i want to share with you how i think about it by posing a question. is there a place for congress in how we think about politics today? is there a place for congress and how we think about politics today? wherever you turn, there is frustration. there is a sense that congress is broken, that nothing is working as it should. i share in that frustration. i worked on capitol hill for over a decade. i have studied capitol hill and congress for over a decade. in my nearly 30 years now -- it is kind of depressing -- combined study and experience with this institution that i love so dearly, the best answer i can come up with is this -- there is not enough conflict in congress. it is a bit unorthodox. but there is really not any conflict there. what do i mean by this?
we have political change. it happens. control of the house and senate shift. control of the presidency shift. -- shifts. the supreme court is very important. the composition of the judiciary is important. but as all of this is playing out, as all this tumultuous churn is happening, there is a backdrop in that how we think about politics has changed. electoral politics is a primary lens through which we see and understand politics. i don't think many people would disagree with that. electoral competition is everything. it is vicki to achieving -- it is the key to achieving one's goals. mitch mcconnell would say, winners win and losers lose. i never understood it for a long time. schoolyardlike a like something a bully would
say, but it actually is insightful. winners who win elections when and those who lose elections lose policy. david mayhew told us that members care about elections, that is common sense. now, i think they conceive of election in terms of the party, in terms of the party, not just themselves. not just their individual persona and constituency. again, not much different down -- different than what a lot of other people would say. despite the constant activity generated by the tumultuous nature, the status quo persists. nothing changes. the status quo persists, i think, because there is no action inside congress to change it. you cannot change something unless you act to change it. there is no action.
if you are on capitol hill today, you are struck by the complete absence of action. it is remarkable. members don't want, in my opinion, conflict, because the legislative process -- they don't want the conflict the legislative process generates, because it divides their parties. when you think of election in terms of parties, the last thing you want to do is divide your party. you believe that winners win, losers lose when you are united and the other side is divided. the result, and my colleagues have mentioned this, you have seen bipartisan agreement to shift decisions to the agencies, toe the courts, because that is where we will handle controversial decisions. we will do all kinds of stuff, but we will not act in congress. on the floor, in committee, behind closed doors -- anywhere. we are not going to act.
you see this with former speaker ryan telling his moderate republicans pushing a discharge ill -- codifyet a bu daca out of committee. chuck schumer, the minority leader, tells his members and issues press releases after the trump administration says they are going to put a question on the census, the court should solve this issue. the republican party emphasizes in the senate that they confirm judges, why? big is judges will act. who voters don't care judges, only in relation to what? the policy. the implicit understanding is this is good for us, because the people we are confirming will act while we don't. this reinforces the importance of those elections, which creates this cycle, and it creates this paradox of inaction which is working everywhere. i think we have missed this and
its intention with how we think about congress today. polarized parties act, because they are polarized. they have no problem acting. parties who are locked in competition and want to do everything in their power to win , they act. they force votes. parties don't force votes in congress anymore. polarized parties are not trying to achieve their ideology. they are trying to hide from the issues that divide the party. when i consider what's changed since 2016 or 2018, the process has solidified. you see this new norm of inaction in both parties. i believe it was in 2018, this is not a malicious thing. i believe the members on both sides are good people. they are doing the best they can. this is how they see the world. in the summer of 2018, former presidential candidate kiersten gillibrand, senator from new york gave an outstanding, emotional speech on the senate
floor about the administration's policy of separating mothers and children of migrants. and it was -- it was a very controversial issue. she gives this very heartfelt speech. she is tearing up. she is banging her fist on her desk. she is talking about japanese internment, internment of japanese americans during world war ii. she is saying darkness is the sending and says the president won't act, we will. at the end of her speech, she says please sponsor this legislation i traduce with my colleague dianne feinstein and she leaves the floor. not once after that, to this day, did she lift a finger inside senate to force action. not once did she force a vote, reject to unanimous consent. not one thing you would imagine senators would do and have done to force issues they care about. either because she wants to win and she is cynical and
the democrats agree with her position, or because she believes truly, but neither is happening. the place where you solve that issue is the administration. it is the presidency. you don't become president when you have a divided party. in the same way, senator jeff merkley from oregon said we are going to the border to solve this problem. the place where you solve the problem is in the senate. i get it, you can go to the border to generate a lot of attention for this issue and use that as leverage to an outside game to pressure your colleagues to pass your amendment or bill, but he didn't force any action on that issue either. not once. you see this with the reaction to aoc. this naivete,ith which is, if you want to do something, you have to act. you don't need to be some fancy political operative. you don't need a phd. she starts looking around for
her leverage and she sees it and she uses it. the parties do not like this. you saw this in the reaction to ted cruz when he came in and said, i am going to act. the people are not acting. the reason is because action is uncertain. it cannot be controlled and it reveals decisions because it reveals information. how can we fix congress amidst this? this is really interesting because i think today, it is not the government is unlimited, yes government has grown beyond its limits, but is also very weak. it is a weird paradox. how do we appreciate this? first, we need to recognize how we talk about legislators, we see them in this passive sense. we see them as victims of some impersonal force. they have no agency anymore. i think that we need to understand how political scientists, interested
observers, how members, and voters have viewed politics has changed. the conventional approach, and i think this originated in the academy, this is one of the few times were clinical scientists can stand up and said we have a major impact -- the conventional approach that we have today, you see it on the news, you read it in the newspaper, we treat legislators as interchangeable. we interpret incorrectly how legislative procedures and rules operate in practice. we theorize the process in terms of static, never changing. also spatial. think of your left and right. your wd nominate scores is your line. and it is not going to work. there is no overlap. we assume implicitly that conflict between legislators will always arise in any legislative process make legislating harder. viewing the congress in these
terms changes how we think about the practice in which members are engaged. it transforms the legislative process into a production process, the purpose of which is to manufacture legislative widgets. if you go to grad school, one of the articles i am sure you read in political science is called the industrial organization of congress, which literally models the legislative process as a production process. it treats congress as a firm, a factory. terms,d in these legislation becomes factory workers that is being made according to a blueprint that has been designed elsewhere. i think of a former majority who gave ane 1960's
incredible speech. he was originally -- on the day that kennedy was assassinated, he held it back for the following week. we forget that no one liked mansfield when he came in. he made them work. he thought all senators were equal and created chaos and uncertainty and it was tough coming from johnson's well oiled machine, which they also didn't like. defending his record, i highly recommend this speech, if you can look it up. he says senators are not factory workers. they are not coming in every anding, clocking in assuming their place in the floor, awaiting instructions. they are senators. that is not their job. politics is not production. this, i think, is really being facilitated by efforts in the academy to develop a science of politics. we have these sophisticated research techniques today, and scholars, who are very intelligent, they believe they
could explain and predict legislative behavior. they can predict legislative outcomes reliably. these scholars produce a body of work is that whatever their merits, and there are a lot of merits, affirm this politics as production view of what happens when legislators legislate. the result shifts over time how we think about congress, away from an architectonic view of politics which is, it is an activity you participate in. it is never ending and it occurs in a place. the whole point is to make decisions because we are in conflict on the basis of equality. that is what self-government is all about. congress is not needed when you see things as production. it is the worst place to design a car. you do not want to design a buick on the factory floor. it is not going to look very good. you want to design a buick somewhere where the experts are in control and bring it to the
factory and they make it, they fabricate it. that is not politics. but that is how we think about politics today. i think about how to fix congress, i am not going to give you any specifics, but i would like to give you some ways to evaluate the specifics you have heard and you will continue to hear. one, i think we need to acknowledge this gap between theory and practice, and we need to bridget. we need to -- we need to bridge it. we need to acknowledge the role that conflict plays. a fabulous scholar of the 1950's wrote i think one of the best books if not the best book on congress called the legislative struggle. he says that compromise emerges from the legislative struggle. you cannot have compromise without conflict, by definition. you have to disagree before you can compromise. when we talk about compromise, we think consensus and we think consensus, because we are thinking production, not politics. we don't need to insulate congress members from conflict.
we need to expose them to conflict because that is the whole point. we can't do big things like the civil rights act of 1964 unless you have conflict. that is why we don't pass big legislation today. you can't insulate something from conflict and then passed big change. lastly, we need to divide -- to design reforms that facilitate action, not stifle it. at the end of the day, we need men and women inside congress, acting. it does not matter why they are acting. it doesn't matter what they hope to gain from it. the whole premise of self-government is acting. that is the point. what comes out of that is the freedom or whatever else you want to call it. if we think about politics in these terms, it will take care of itself quickly. it may be regular order like the 1960's, it may look like something complete a different.
for it to work, we have to recognize that it cannot be controlled, it cannot be predicted. it is inherently uncertain and it is shot through with conflict. that conflict is the answer. thank you. >> thank you all for those remarks. before we turn it over to the audience for question and answer, i thought maybe i would give each of you an opportunity to bring up any responses you might have to the other panelists and their remarks. if there are none -- ok. >> i would generally say, i agree with james. i think there needs to be more politics. in many ways, that is the madisonian solution and the way you will get something coming out of the legislative process. it was designed that way so it would force deliberation and force them to come to something.
my point is that conflict and more politics in congress needs to actually end in congress acting as an institution in congress only speaks -- they speak out through twitter as individuals, but as an institution, they only speak through legislation. i would like to see conflict between the two branches, which means they need to pull back their authority so they can engage in that kind of authority with the executive and less running to the courts to solve their problems. >> i think that is right, but we have to recognize that the only way congress can act as an institution is if its members act. what comes out of that process conflict in the house and the senate, there are outcomes. when i worked there, if you
wanted to start a piece of legislation, you try to freeze the process. you figured out whatever you could do to free the process and when she did that, you're halfway there because then the pressure starts building and it gets harder to get going again. the legislative process is almost impossible to stop. we don't like that today, because you can't control it. my point is that congress will act as an institution. i can't tell you how. but it will act as an institution if its members act. as long as the members refuse to act, it can't be an institution. >> but you are not changing around the filibuster. >> i haven't seen any filibusters. we theorize the filibuster as a veto. but we do, our model theorizes a filibuster is a veto. there are no vetoes inside the
senate and united states less you ask for them. unless you ask for unanimous do,ent, and if you objecting to that is not a filibuster. it is a vote that everybody has to vote yes for it to pass. we think about congress, it's just completely nonsensical. >> questions from the audience? >> yes. two questions. first of all, thank you for the time. it was worth it right here coming to the convention, so thank you again. two predictions. i understand what you're saying about the filibuster. my guess is that if democrats are going to have control after 2020, then my guess is that even if it is republicans, that
that it is that as well. legislative filibuster. the other one is a conference point, there is more with just record numbers of people saying they would be mad if their son or daughter married one of their kind, politically speaking. but the same time, we are declining postal have near record numbers of people registering as independents, that number are starting to come down. given that we are so polarized in so many levels, what will it take for registration -- voter registration figures to really turn around any match -- massive way and people reregistering with the parties again?
>> interesting thoughts and questions. the first i will address is a polarization. political science literature really shows in 2019 that the polarization occurred not only in congress but is also a mass problem. for a while, we know at the elite level it is really polarized along partisan lines, but among voters, there's more people in the middle. the mass public is polarized as well to a greater extent than in the past. independent voters, it depends on the state and state law, and it also depends on whether we are talking about surveys are -- about surveys. myths ofay back in the the independent photo, a lot of the people who respond to polls, oh, i am independent, and do not get that follow-up question.
if you had to classify yourself as a republican or democrat, so if they do not get that follow-up question, it is really hard to tell. we know that the independent leaners act in justice, partisan ways. people who actually do identify it is hardtisans, so to know what to make of that. a lot of americans are also turned off by politics. they don't like conflict in congress, but they also don't like compromise in congress. the transparency of congress is a wonderful thing for scholars, but for the mass public, it just looks like a mess. in 2019, that is more true than ever. while i agree with james that there needs to be more substance -- substantive conflict in congress where they are grappling with policy issues or the debate of the day, are the appropriations cycle addressing these issues head on, i don't think we need more
messaging votes like the one molly brought up with the aca. that just further alienates the public and brings us back to joe's earlier statistics as to why people don't like congress. >> to pick up on a couple of things that kathryn said on this partisanship question and the polarization. of why do weion see fewer people registering with the parties, but also see very high levels of partisan voting and polarization in the mass public, i think that illustrates an important conceptual difference between parties as institutions and how people feel about the parties as institutions, and partisanship, and how that as an attitude manifests itself in people's behaviors. like kathryn, i am not a scholar of public opinion or voting behavior, but i do think that when we think about what leads
people to register, for example, as a member of a party or not, there is this question about how they feel about what a party is and what they see parties doing that is different from how they might organize, how they might think about politics around a partisan identity, functionally the same as a partisan identity. on the question of filibuster, i will be honest and say that i am somewhat more skeptical than you are that the filibuster demand -- demise is coming. for me, the question you have to ask yourself about the legislative filibuster is, what is the piece of legislation that either party could come to an agreement on that they would be willing to eliminate the legislative filibuster? and here, i really think the experience of the republicans in 2017 with the failed attempt to illustrative. is
in 2017 pursuit a legislative strategy that meant they only needed 51 votes to get that through the senate. and what ultimately killed it was the fact that there was not a piece of legislation that they agreed on, that they could move through that process. i think for me, what would that be for either democrats or republicans? i'm not quite sure at this point. until someone presents me with a piece of legislation that i think either party would be willing to make that change to get, i am going to remain skeptical. >> i share molly's skepticism. i think it is interesting, juxtaposing that to the notion of polarization or party -- partisan competition. if we can't identify a piece of legislation that the party can unite on to act on something like this, that we all agree that if they could they would,
that really speaks to the fact that the parties are not in agreement to the extent we think they are or that they are capable of competitive action with one another to the extent we think they are. the filibuster right now is much more valuable to the leaders, it is a way to keep everything under wraps. if schumer and mcconnell have their way, they do not want to get rid of it. once you get rid of the filibuster, there is really no way to keep individual servers in line. when a senator says i am going to offer an amendment, even though the amendment tree is already full, and the leaders come to them and say, if you do that, the filibuster is going to be next to go. they lose that. the leaders have no real capability to control the senate. unlike the house, the vice president presides. you can't exert the same level of control as you can in the house even if you have a majority and if you agree. the senate only gave the vp certain authority.
that was john c calhoun, he picks committees. i think also, the filibuster as we once knew it is long gone, because we are talking about the means to an end. when you think about rules as means and ends, you are back in this production world and no longer think about leverage to achieve your goals and act. if you think about them in that achieve your goals. wrote in my book. the minority is not powerless. the minority has a lot of things toy can employ as leverage dissuade members of the majority from going nuclear, which we have seen over and over again. forcing theenator senate to reverse itself. that's why they have these 3/5 rule. parties make people vote.
mass parties, highly organized, model. buren progressive reforms undermine a lot of that. parties can come back and do that, but parties are ultimately what will drive voter dissipation and the last thing i , with substantive conflict or whatever, some may say it is substantive. some may say it is a waste of time. when i think of the legislative process, i do not think of it as a stack. i think it extends forever. if you are a oc or jesse holmes or, you know, jim dement and you confronting a chairman who does not do what you want to do -- you use the outset out the outside game to force them. maybe you win that congress.
maybe you win in 20 years. messaging votes. that is how these civil rights rights act of 1964 past ultimately and that's what pushed the balance over. that's the activity we need. it can be used for things that may be unproductive. that has to happen. until it does, congress is going to not be doing anything. the question about polarization and partisanship. on one hand, i agree with this. on the other, that might read -- i favor polarization and partisanship. both political parties seem to one group thatn wants to maintain the status quo -- the democratic party seems to
it's something that is not going in a civil reform. it's going to have to be fought .ut one of the problems is congress theot set up in a way that opinions of the american old, divided as they are is being reflected through the legislative process in a way that affects policy. instead, they are increasingly -- both hardee's, especially the conservatives see a country increasingly making policies over which they have very little , and that is increasingly frustrating. that is part of what is laying out, or not playing out in how operating -- playing
out or not playing out in how congress is operating. >> [indiscernible] decisions.the tough they simply want their constituents -- [indiscernible] the president has been turned into the chief elector. he is important because he will choose the people who -- [indiscernible] we have to discharge these floorons, to bring to the the bottom line where we have had two runs, virtually every democrat in the house voting notnst -- democrats are
apologetic about this. they are ready to vote down the line on this issue area so -- thisans in the house looks like a disposition to acts. i'm thinking of the days of george w. bush way the court started injecting themselves and we saw the republican congress thisnding quickly to jurisdiction and they were responding to the crisis at hand . what you make of this? of them tryinge to force an action on this question. do you think it is serious?
>> from what i can tell, these things -- these things are always happening around us. i think -- i saw it happening around me. i could not put my finger on it. articulate it. this is a relatively new thing. the last bill that was placed on the floor of the senate, where you did not know where it was going to end. sometimes you have to get going and see how it goes. that does not happen anymore. i think it is a new thing. it happened very recently. book kramer has a fabulous called the people themselves and ,e is picking up in our book and that is 15 years ago, you see this hesitance.
you cannot say in either party we should impeach a judge you say made an unconstitutional decision. can't do it. jurisdictional stripping is the negative term. they don't do this anymore. you can't structure the way the courts are structured. that both parties talk about the confirmation process is it is a political when in reality the hope point was to be political. run multimillion dollar ad campaigns to pressure people to vote for their judge who they say are apolitical. it's a technique and how we combat our opponent in politics. i take your point. talkingmics they are about, i think this is where they are manifested. parties will act when they feel
like it is safe to act. i do not think all democrats are against this bill. i don't think all republicans are for it. they act when it safe to act. take dr. for he it -- take daca. of congress members would call the fire. but they are frozen. now they are just hoping somebody will act and the president is hoping the courts will act because -- you can ignore a district judge, but he is not. when itparties do act is safe and there's an explanation for why they are acting that way. they would not talk about the control and all this other stuff. it is safe to act.
>> signatures have been public since 1993 on discharge petitions. we have some sense of the -- buts of the chorus it's anathema to the majority party because it takes away their agenda setting powers. , there are a couple others where the signatures were getting close and the leadership got people who had signed or were about to sign. one of the interesting things, where minority members sign them is how different things were from the 1930's to the 1950's. the national archives after 30 minutes, makes it public.
the discharge position -- petitions used to be served liberal democrats. so southern democrats really have a lot of agenda control. that is just one example of how congress has changed. they had agenda setting power, which is manifest in the sense that these are northern liberal democrats. >> yes? , this will years ago upon congress and they call this the key center of the washington establishment and from what i motivations hehe points out are still in place.
--re's much more innovation motivation to do constituent services porkbarrel, to get your , you say that yet congress is no longer or not as much the keystone of the washington times. the force is more in the hands of the executive right now. does his analysis still hold true. -- hold true? what do you think? has polarization changed the motivations for acting in any way? >> i will start there. it's not that i think he has been proven fall. we have entered a new phase. hasink the point of gravity
shifted. ?here is the real debate it's an hhs. congress is not the keystone anymore in the sense that it's not the center of the triangle. so often congress is a lobbyist and they are lobbying the administration for -- that is how legislation is written. that is how the deals are made. that is how we negotiate how is being forced. which means it has gotten that much worse. i rememberbe -- hearing stories about john dingell. dingellgram over to the administration and they would quake. they were you -- they were ready
powers of congress. already a problem. but by shifting it out of the you do not, where have the normal processes of -- consent, and congress is trying to keep up under the but it's executive and the executive does not have complete control over it either -- i think we need to recognize something fundamental has shifted and as a practical matter, the vast majority of things that we would consider to be laws are actually passed i people that are brought -- that are not really subject to the debate and the election, and actually not subject to normal
judicial process even. that's a fundamental shift. we back up and see where this started. we are missing the forest for the trees. the loss of that -- it's adept to legislation which is supposed to be the most important of the three branches. it's less that he is wrong and more that we have entered a new era, a new form. >> it's not that congress is not doing much legislating. it's a pretty big implication
for federalism. we are seeing state legislatures that are under unified party control of all three branches, state legislatures are making a lot more policy in the absence of congressional policymaking. blue states are producing currents -- liberal bill spirit conservative tates -- conservative states are producing conservative bills. >> real quick on those points, both excellent points. this is bigger than left and right. we have to think about what legislatures do. the administration in theory resolves problems with the application of expertise. in the legislature, you adjudicate disputes and concerns of equals, of citizens. and about persuasion bargaining. if you lose, you can come back the next day. come back andu
you say, ok. it reconciles you to the outcome. but you do not want the administration to want to apply expertise in a lot of things. it does not legitimize and reconcile losers to an outcome. it's very difficult to make policy, and of environment. that's a bad thing. it does not matter if you were a democrat or republican, liberal or conservative. it's weakened considerably and it does shift back to the states because at the end of the day, politics wins out. they will triumph over this far distant shadow we thing. >> that's an excellent point. for the same reason we object to
a ruling by judges, not only because they are unelected, but because they tend to make binary decisions -- there's not a deliberate process by which you can have compromise and deliberation. object tome reason we that, we should object and congress should be objecting to how regulations are doing more of the lawmaking, not becauseit's binary, it's increasingly arbitrary. it's unpredictable. it's hard to see how the process works. congress has to lobby them to figure out how it will be enforced. that's not a constitutional process. that's not the rule of law. that is the heart of the problem. >> i think we have time for one more question. i have about 100.
panel ask everyone on the abroad question so you can speculate. what does the future hold for congress. is congress going to come back to a better place in the view of americans, or do you think this irrelevance sort of is going to continue? what you see in the future for congress? anyone want to predict poor speculate? >> very quickly, i try not to think about trends because it's very hard. in reality, what are the men and women in congress and the future, how are they going to act. bad,e past, it has been people of been unhappy, but you have new members come in. great question. barbara sinclair writes about it in her fabulous book "the transformation of the united
states senate." to get socialized into this environment where, if we act, we are not going to achieve our goals. the best way to win is not act, which is kind of nonsensical. intong as people come congress and think like that we will see this dysfunction, but ultimately it is great nation, this fabulous nation, at the end of the day, it comes down to the want theirnd if they members to act, than they are going to act. i don't know how. but they are going to act. and then it will change. a hard question. it's hard to imagine the incentives of the members of congress changing all that much, at least in the short term. the incentive to vote with their party leaders, to have all of appealessaging votes, to with tweetsnts
rather the me a hard legislative work. there is hope. one is the bipartisan problem solvers caucus. it seems there are growing number of members of congress within the institution that recognized as a problem. not a majority who are willing to act on it, but as some of these leaders who have been more recently elected get reelected , it'sel a little safer possible and it might also take a leadership change in both parties. it's always hard to predict these things. i will make two observations. aboutways optimistic congress reforming itself and realizing it gave away a authority it ought to drawback selfish reasons, but it doesn't seem to happen. when the current president was hopes,, i had high precisely because there were
republicans in his own parties who had real serious differences with him. and paul ryan was serious about things like the budget. but it didn't happen. i'm less optimistic about that. think change will come from congress. this drives towards a system that will be focused on national elections, but i do not see how congress itself will show signs there's life there. the best bet is they might be saved by an executive who realizes that we actually need a legi