Are members of the House of Representatives legislating in the dark? (with James M. Curry)

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The topic of this episode is, “Are members of the House of Representatives legislating in the dark?”

My guest is James Curry. He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book Legislating in the Dark: Information and Power in the House of Representatives (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar. And I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

James Curry:

Thanks for having me.

Kevin Kosar:

Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so?

James Curry:

So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons.

First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process.

Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills.

So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to support that legislation. On a grand scale, this means that lawmakers with more knowledge and information are going to have more power. And, as it turns out, these are often the same people who hold other institutional power positions like party leaders and committee chairs. These folks are typically not only well versed in a subset of policy issues, but they also have large staffs at their disposals to provide them with additional expertise. This enables their involvement in policy-making at high levels and gives them greater sway over their colleagues’ votes in trying to get them to support or oppose whatever is being considered on the floor that day.

Kevin Kosar:

That makes perfect sense, and it comports with something I was looking at not too long ago—House rules—and it was impressive to me just how complex the rules of the chamber are. And upon seeing them, it brought to mind the old quip from John Dingell, who was in Congress for a very long time—a powerful member from Michigan—who said that "If you write the bill, but let me write the rules, I'll screw you every time." By virtue of knowledge of procedure, he could get things done and get them done to his liking that other people could not.

Now, 50 years ago, Congress beefed up its core of legislative branch support agencies. This was a direct response to the “imperial presidency,” where presidents had tons of agencies to draw upon, tons of experts to draw upon, and the presidency was being viewed by Congress as having gotten too big for its britches—it was pushing the First Branch around. So Congress did a whole lot of stuff 50 years ago, including creating the Congressional Budget Office (CBO) and turning the Legislative Reference Service into the Congressional Research Service (CRS)—a full-blown think tank—amongst other actions. Yet here we are 50 years later and—by your assessment—these entities have not been enough. Why is that?

James Curry:

I guess the important questions are for whom are they not enough and for what are they not enough, because these are really important entities for Congress. They provide the institution as a whole with a ton of expertise, with a lot of resources at its disposal that it can and does use to learn about policies, dig into details, develop ideas, and figure out where they're going to go in the long term. I think they also helped Congress push back against an executive branch that is just rife with knowledge, expertise, and resources.

However, what CRS and the CBO cannot do is help lawmakers in the moment when they have to decide on whether or not to support a bill. CRS and the CBO are not built to provide each member with rapid responses to specific questions about a bill that's on the floor in that moment. Often, CRS cannot finish studying a proposal and its implications before it passes. Ideally, CBO provides a fiscal score to a bill before it's considered, but that doesn't always happen either, depending on the speed at which the lawmaking process is going. So, these resources are important, but they can't help bridge the gap between what the rank and file know about what's going on and what party leaders know about what's going on. It doesn't change that gap that exists between the lawmakers who are in the know, who have plenty of resources and expertise at their disposal—including CBO and CRS when it's developing legislation—and what the rest of the membership knows when it's now asked to decide whether or not to support or oppose this thing.

Kevin Kosar:

It sounds like part of what's happened is that there has been a loss of what we call regular order by which a bill gets introduced and goes to committee and maybe subcommittee, then follows a deliberate process, and then eventually gets put on the calendar. Frequently what we see today is something that looks a lot different—what Barbara Sinclair called Unorthodox Lawmaking. And one feature that you flag in your book is the omnibus bill as contributing to this information and power asymmetry situation.

James Curry:

Yeah, we’ve recently seen more and more laws being passed in these large, thousands of pages-long omnibus bills that start out as something that's focused on maybe one specific major policy debate, but get expanded to include—and have attached to it—all sorts of other things that Congress has been working on. The challenge for a typical member of Congress is getting this massive bill—usually not long before it's going to be voted on in its final form—and having to figure out what to do. Beyond this, these omnibus bills are more often getting negotiated behind the scenes—negotiations among top party leaders and maybe some top committee chairs who are brought into the fold—in which they figure out what can and can't be done, what is going to be included, and what's going to be excluded from this bill so that leaders on both sides of the aisle can agree to pass this thing.

But then it's brought back to the rank and file and presented to them by leaders who were the only people in the rooms where the negotiations were happening. They're the only people who can say with any credibility, “Oh, well, this is the only deal we could get, this is the best deal we could get for our side of the aisle. This is what was on the table and what wasn't,” and so on, and then present it to them in the short term as a take it or leave it proposition. This all makes it really hard if you're a typical member of Congress who wasn't involved in the negotiations and didn't get to see the final package until the last minute to make an independent decision about whether or not you think this is a good idea for your district or your state. It means you're more likely than not to support it because it probably has some stuff in there that they can sell you on, even if you didn't really get to dig into every aspect of it.

Kevin Kosar:

And, if it's an appropriations omnibus and there's the possibility of a government shutdown if you don't vote for it, you face all the more pressure.

James Curry:

That's right, and this is typically where a lot of these omnibus bills originate. They usually originate with the effort that Congress goes through in the fall and winter to keep the government open—pass these 12 appropriations bills as one large package, or they're connected to other things like the Annual Defense Reauthorization, which has to happen. Or, if you go back to the winter of 2020, a lot of this stuff was connected with much-needed COVID relief that was being negotiated over in late December of 2020. So you're opposing something that everybody wants—at your peril—but attached to it are all sorts of things that you probably didn't have a lot of time to think through in a lot of detail.

Kevin Kosar:

Well, earlier you noted that frequently, the people who are in the power positions in Congress are also the people who are particularly expert or have information that your average member does not have. That could be just a coincidence, but it's more than that because chamber leaders—we have evidence—actively withhold and try to control information, which sounds a little nefarious. Why do they do that?

James Curry:

They do it in large part because it helps them get something done. Congress today is operating in an incredibly difficult political environment. We have a really intense two-party conflict, a lot of really strong feelings on both sides of the aisle. We have a constant desire to have a public presence and public position-taking on issues, which members of Congress do to an unprecedented degree on social media and other places of taking really strong stances.

Well, say you're now a congressional leader, and you have to try to strike bipartisan deals to get things done since most things still have to build bipartisan support to actually get done. A good way to do that is to try to take control of the process and try to withhold information about the details of what's being negotiated until the last minute because any leaks about “This was being considered,” or, “This was taken off the table,” could cause hardcore partisans on each side to just explode in fury, oppose the whole thing, and bring the whole thing down.

This is why leaders often move all this decision-making behind the scenes, why they shut down what used to be really open amending or free-wheeling debate and amendment in committees and on the floor. From the perspective of party leaders, these processes—good as they were for enabling deliberation in Congress in a different era—have just become tools for opponents to embarrass the majority, gum up the works, and try to tear legislation down instead of building it up. Whether or not that's 100% accurate, that's the thought process of leaders. They do this so they can try to get things done, but it has the consequence of moving a lot of the deliberations that actually happen in Congress behind the scenes and really centralizing the core of those deliberations in a small number of key lawmakers.

Kevin Kosar:

So how do leaders withhold that information? Is it just by virtue of the fact that they got the bill and they've got the final draft until the last second—“Here it is. Take it or leave it.” The person obviously is not going to have an opportunity to read the bill as we expect all legislators to do. Is that basically their main move for withholding information or are there other ways that they engage in that?

James Curry:

It's the main move, but they can also do things like changing the legislation at the last minute.

You'll see this a lot in the Senate these days where—procedurally—it can take so long to move something through the Senate floor that Chuck Schumer or whoever the majority leader is at the time will put the legislation on the floor and start the debate while he's still negotiating the final details of it behind the scenes with key senators who are withholding their votes. These days, that's primarily Joe Manchin and Kyrsten Sinema. Then, after several days of debate, he announces that there's a substitute amendment that they'll be bringing up and voting on really quickly, very shortly after which they'll be voting on final passage as well. So for the rest of the senators who weren't involved in these core negotiations between perhaps Schumer, Manchin, Sinema, and maybe one or two other lawmakers, they're sort of left without a whole lot of time to really process the changes that were made.

From a procedural standpoint, offering a substitute amendment to a bill doesn't necessarily make it super easy to track what changed and what didn't, because they don't have the changes lined out and replaced (e.g., we cut this paragraph and replaced it with this paragraph). It's just, “Here was an old 2000-page bill and now here's a new 2000-page bill, and we'll tell you what changed and why you should support it.”

Kevin Kosar:

Yeah. That is a common gripe amongst newer legislators, particularly in the House, “Why can't we see tracked changes? Because it makes it really hard for us to do our job.” And the answer is, well it's perhaps not in the interest of those in charge that you can track changes.

James Curry:

Perhaps by design.

Kevin Kosar:

Yes. To build on your point, one thing I've also noticed is that you were speaking about the Senate. But in the House, the Rules Committee will often write a rule that might encompass more than one piece of legislation and deem that if you vote for the rule, both these pieces of legislation or considered enacted by the House.

James Curry:

Yes.

Kevin Kosar:

And you as a legislator are looking at a very short rule that is just making reference to some larger piece of legislation and they're bundling things together. So that also adds to the take it or leave it because you can't just pick what you don't like and vote against it.

James Curry:

That's right. These self-executing rules change the underlying legislation upon adoption of the rule or deem other things passed or other things amended, and it can be hard to follow if you're just in a typical member's office because there's a lot going on. These rules keep getting longer and longer if you read them and then they'll reference a very long Rules Committee report that includes more information. It's not just a simple one-paragraph special rule that you might have seen a couple of decades ago. It's a lot to follow, especially if you're a new member of Congress and you have new staff who haven't been doing this for years. It's easy to get caught off guard and not be able to easily follow everything that's going on, which puts the people running the show in the driver's seat.

Kevin Kosar:

It sounds as if two cherished values that we have for Congress, number one, is that it gets stuff done—call it partisan efficiency if you like. You're the majority, pass the bills. Another value they should be deliberating seems like intention. And question one might ask is, well, what's the downside of having legislators in the dark if they're moving the bills along? At least Congress is getting stuff done, right?

James Curry:

Yeah, there is that upside. This does help Congress get things done in an era where it's really hard—for the two sides to come to agreements. But I think the downside is clear—you have a large number of members who have a harder time having their voices heard in the deliberative process. This is bad if you want representative deliberations on everything that passes. You may hold the ideal, “This is supposed to be a Congress with one representative from every corner of the country and two senators from every state who can weigh in, and make sure that if something passes, it has broad consent from across the country.” If not everyone has an equal opportunity to weigh in, then by definition, you're not building that broad-based, representative support that the Founders wanted out of this system.

And it's not that it's impossible for junior or rank and file members to get their voices heard or to insert themselves in the process. It's just really hard compared to the old days and under regular order for a junior member of Congress to offer an amendment in committee or offer an amendment on the floor, or at least voice what they would like to see change or at least voice their concerns.

These days, if you want to get something changed in a bill, you have to find a way to get the attention of your leaders who are involved in these behind-the-scenes negotiations and build a coalition of like-minded legislators—all of whom are willing to withhold their votes on the final package in the...

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