When members of the ultraconservative House Freedom Caucus revolted last October against then Speaker John Boehner and threw the House of Representatives into chaos, their central complaint was that they had systematically been cut out of the legislative process. “[Boehner] operated a top-down system,” complained Representative Justin Amash, of the speaker’s regime. “Which means that he figures out what outcome he wants, and he goes to the individual members and attempts to compel and coerce us to vote for that outcome.”
Legislating in the Dark:
Information and Power in
the House of Representatives
by James M. Curry
University of Chicago Press, 264 pp.
Among the caucus’s many demands was that the House return to “regular order.” Rather than a small cadre of leaders running the show from on high, House committees and subcommittees should actually write bills, with space and time to deliberate. Bills should not be foisted on members at the last minute.
While widely acknowledging that regular order was a nice idea, many in the Washington commentariat worry that any move away from the kind of centralized power structures that House leaders have been building up for decades would be an invitation to even more chaos. Imagine what would happen, many argued, if these right-wing extremists had more opportunities to participate. If you think things are bad now, the thinking goes, you ain’t seen nothin’ yet.
The standoff ended when Paul Ryan reluctantly agreed to serve as speaker, told House Freedom Caucus members he felt their pain, promised he would do what he could to involve them more in the process, and then somewhat reorganized the powerful Steering Committee as a symbolic first step. Washington collectively breathed a sigh of relief.
While many of the caucus’s demands are ridiculous, the idea that the House should become a more deliberative place isn’t. It harkens back to James Madison’s original vision of Congress, which, in his timeless words, would “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens” so that “the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.” Perhaps the House came closest to these ideals in the 1970s, a time of considerable subcommittee activity and bipartisan compromise. The drift away began in the late 1980s, when Democrat Jim Wright began to consolidate power in the speakership. In 1995, when Newt Gingrich was elected speaker, he affirmatively changed the model, eliminating subcommittees, weakening committees, and centralizing power in ways that had not been seen since the early twentieth century, when Republican Speakers Thomas Reed and Joseph Cannon operated effectively as czars.
And yet, opening up the deliberative process to allow the House Freedom Caucus to participate more still feels like an invitation to legislative nihilism. And yet, the kinds of strong-arm leadership tactics that Boehner used (and Ryan will eventually have to rely on as well) do run counter to that deeply held vision of Congress as a hallowed deliberative institution. And besides, such a top-down approach may be increasing, because, lacking any meaningful stake in the process, rank-and-file members can only grow more frustrated. And yet …
In thinking through this dilemma, an important new book by the political scientist James M. Curry, Legislating in the Dark: Information and Power in the House of Representatives, argues that deliberation and partisan efficiency are fundamentally in tension, and that we’ve probably gone too far in the direction of partisan efficiency. Curry’s basic thesis is that party leaders and committee chairs now carefully script the dance of legislation, keeping rank-and-file members in the dark about the process. When they want to ensure passage, leaders release long and overly complicated bills at the last minute—what is known as “restricted layover”—so members have no time to read them. They then distribute talking points and brief summaries that selectively present the legislation to maximize support within their party. Leaders on the floor alter bills at the last minute using “self-executing” rules to ensure that they get both the policy and partisan passage they seek, often changing the bill at the last minute (again, making it hard for rank-and-file members to participate). To the extent that rank-and-file members get consulted, it is primarily for purposes of vote counting, not opinions.
“Information provides power in Congress,” writes Curry. Those in the leadership have “extensive information about the legislation being considered and the political dynamics surrounding that legislation. Rank-and-file members in Congress, in contrast, have limited resources and find it very difficult to become informed about most of the legislation being considered at any time.” So they usually follow the lead of their party and vote in predictable partisan fashion. After all, if they are going to dissent, they’d better have a good reason. “When there is less information available,” writes Curry, “they will have more trouble finding reasons to oppose the legislation.” (Or, if they are in the minority, reasons to support it.)
Between 1998 and 2010, funds to majority leadership offices grew twice as fast (up 50 percent) as funds to personal offices (up 27 percent) and funds to committee offices (up just 22 percent). Moreover, legislation has become more and more complex, and complexity is a key tool of rank-and-file compliance (the longer the bill, the harder it is to read). Like members of the House Freedom Caucus, Curry laments these developments. “In shutting most lawmakers out of the legislative process, stifling their voices, and keeping them in the dark,” he writes, “leaders undermine the quality of legislative deliberations and dyadic representation in the House of Representatives.”
Yet, as Curry notes, the tactics are effective. Restricting access to information helps party leaders to get their priorities passed. And for those in the parties-should-be-strengthened camp, this might be a welcome development. “Advocates of strong, responsible parties should be pleased,” notes Curry. “The leaders of each party can use these tactics to line up their rank and file on votes, establishing contrasts for the next election.”
Curry marshals considerable data to show that the three big information-restricting tactics he found—restricted layover, self-execution, and bill complexity—are all statistically associated with more polarized vote outcomes. This is true for both the majority and the minority party. By contrast, when House members have more time and capacity to consider legislation, they are more likely to come to their own conclusions.
In Curry’s telling, members likely haven’t thought through most issues, since they are rushed into decisions. But if they were given more time to deliberate, it’s more likely that they might come to some other conclusions. More deliberation might even lead to some new cross-party coalitions in Congress, similar to the cross-party voting patterns that predominated in the 1960s and 1970s, when leadership had much less control over the process.
This also fits with Justin Amash’s hypothesis: “Under regular order, bipartisanship and compromise flourish. With control over the legislative agenda devolved to committees, subcommittees, and individual representatives, more liberal outcomes are possible, but so, too, are more conservative or libertarian outcomes.” The implicit logic is that the partisanship that dominates Washington has much to do with the top-down leadership style that has predominated in the House, particularly through the restriction of information.
Moreover, as Curry notes (and is becoming increasingly apparent to other observers), even these information-limiting tactics have their limits: “Legislative leaders’ aggressive use of information tactics may have the side effect of eroding trust, especially among moderate members and others outside their party’s orthodoxy.… Consequentially, they grow skeptical about what their leaders tell them and ultimately may be less influenced by it.” But this approach can only last for so long before frustrated rank-and-file members have had enough. This seems like a pretty good explanation of what happened with the House Freedom Caucus. We may be coming to the end of the effectiveness of these tactics. Which suggests that if leadership continues to use them, they will only be further eroding their effectiveness.
Curry also identifies the obvious risk of expanded deliberation that many commentators have warned about: “Doing too much to dilute leaders’ advances could also lead to undesirable unintended consequences such as more gridlock.” A transition to expanded deliberation has other difficulties to overcome. One of these is that legislation is becoming more complex, and, as Curry notes, “Bill complexity has the most robust effect on partisanship, with every test indicating that more complexity results in more partisanship.” Certainly, some policy is complex because the world is a complex place. But Curry argues that some of the complexity is intentional: “Committee chairs and leaders can also draft legislation to be more difficult to read, using more technical jargon than is necessary, writing provisions in a way that is less than straightforward, or burying the lead by including significant provisions toward the end.” It might not be possible to limit bills to single subjects or just three pages. But avoiding needless legislative complexity seems like a good idea for the healthy functioning of a deliberative Congress.
The other obstacle is the staffing problem. Even if members and staffers had a chance to participate more in the legislative process, it’s not clear how they would use that chance productively under current staffing arrangements. Most House members have just a few legislative staff, most of whom tend to be young and relatively inexperienced and stretched thin across dozens of issues.
As I’ve argued in these pages (“A New Agenda for Political Reform,” March/April/May 2015), when congressional offices lack policy information they frequently turn to lobbyists, who are only too happy to provide it. Lobbyists often work closely with committee staff and party leaders to craft legislative proposals, and then frequently work with those leaders to get members on board. When I worked as a Senate staffer covering banking issues, I frequently learned more from the lobbyists than I did from the committee staff. When the draft version of Dodd-Frank came out, I was surprised to find myself relying far more on the detailed summary provided by Davis Polk, a law firm that represented the banks, than the much skimpier version provided by the committee. My one frustration in reading Legislating in the Dark is that Curry largely ignores the information members get from outside the institution, from lobbyists and the groups they represent. But this should reinforce his large point: absent the capacity to process information on their own, the path of least resistance is to simply rely on the biased information that is readily available.
Another challenge in building more deliberation is that for decades, Congress has collectively decided that having experienced staffs is a luxury the country can’t afford, so they’ve tightened their budgets to the point where it’s hard to retain talent. Moreover, individual members have less and less time or interest in policy details themselves.
Curry argues, “Lawmakers need more expert information that does not come from political actors or offices with explicit agendas.” He wants to expand the Congressional Research Service and the Congressional Budget Office. He’d like to bring back the Office of Technology Assessment and support similar legislative service organizations to do independent research for Congress. He suggests that Congress do a better job tapping the knowledge that lies in universities across the country. He’d like to see rank-and-file lawmakers have the resources to participate more independently, to “pull the legislative process out of darkness.”
The transition would be rough and chaotic, given the obstacles discussed. It would take some time for the House to figure out how to function again as a genuine deliberative institution, especially when the institutional culture has shifted so far in the other direction for so long, as Curry nicely documents. Still, institutional cultures can change. If individual members had more capacity to participate and deliberate meaningfully, they might start taking their responsibilities more seriously, given the greater stakes involved than in being a warm body voting yes or no. As being a congressman became a more appealing job, it would attract a different pool of applicants. As the Hudson Institute’s Christopher DeMuth argued in a Weekly Standard article arguing for rebuilding Congress, “If persons with specific competencies such as these saw congressional careers as a route to high achievement, the pool of office seekers could be enriched and diversified, and the prospects for reestablishing Congress’s constitutional position much improved.”
Not only does Legislating in the Dark come at a good time, given the current debates about House organization. It’s also clearly written, deeply researched, and brimming with detailed and frank quotes from members and staffers. Among my favorites:
· A rank-and-file member on reading a long complex bill: “It was like reading a computer program.”
· A leadership staffer justifying cherry-picking details: “Maybe that’s intellectually dishonest or something, but you don’t really have the benefit of time if this thing is moving quickly.”
· A Republican Study Group staffer: “They’ll work with us if they fear us—if they fear us bringing something down.… They want our voters or don’t want our no votes, or are afraid we’ll blow something up.”
The optimistic view is that Legislating in the Dark spotlights a path out of the current Chinese finger trap of ever-tightening leadership control, partisan gridlock, and ideological rebellion. By showing how much information (or lack thereof) has driven both polarization and member frustration, Curry lays out some clues about what a more deliberative House might look like. His analysis suggests that it would be a less polarized place, and probably an institution that would create space and perhaps even require more bipartisan compromise. A more informed House might also be a chamber in which rank-and-file members would feel a certain amount of ownership over policy development, rather than simply drifting unproductively between learned helplessness and angry rebellion. It will not be easy to get there, and there will be some difficulties along the way. But the status quo is far worse.