Shifting Legislative Dynamics & Transparency


A couple of days ago I wrote about some of the potential transparency issues related to the decision by House and Senate Democrats to skip conference for the health care reform bill (see here for background on what conference is). After thinking more and more about the issue I’m inclined to believe that the issues raised with skipping conference relates more directly to a structural shift in Congress that far too many are ready to ignore. (For more on the conference committee controversy see this post by John Wonderlich.)

Ezra Klein, who has been focusing on congressional malfunctions for the past few months, points out the major shift in congressional relations and partisan behavior in recent years:

…understanding the United States Congress as an institution gripped by ideological competition is simply wrong. It’s an institution gripped by electoral competition. The political scientist Frances Lee puts this particularly clearly in her new book, “Beyond Ideology.”

“Parties,” she writes, “are institutions with members who have common political interests in winning elections and wielding power, not just coalitions of individuals with similar ideological preferences.” According to her data, senators in 2004 are 63 percent more divided along party lines than senators in 1981. It’s no coincidence that the rise in party-line voting has coincided with the ideological realignment of the parties. Now that the parties agree internally, they can focus their efforts on winning power.

The dynamic that this electorally centered process creates is one in which the minority has no incentive to help the majority pass legislation. Rather than working to include conservative ideas in the health care bill there is total opposition from the Republican side. In this era, the key for the minority party, especially one that has suffered successive losses, is to kick the majority out and regain power. It’s like a football team who throws in the towel in the middle of a losing season to acquire a high draft pick. Might as well aim to regain power in the future than play the game in the present. It worked for Republicans in 1994 and Democrats in 2006.

This new era (the past twenty-some-odd years) of Congress poses numerous problems for transparency in the legislative process. This largely stems from the fact that what has been viewed as the normal legislative process in the past no longer applies.

The majority rushes bills through Congress with little time for lawmakers or the public to review them. Omnibus bills obscure hidden provisions in the crammed, rushed appropriations process. Earmarks are used to fund the districts of endangered incumbents. Speeches on the floor and in committee hearings are akin to Javanese shadow puppetry so as to avoid the all-powerful gaffe patrol. The Rules Committee holds late night sessions – more so in the past than currently, but other problems still persist – prior to a bill’s consideration leaving little time for lawmakers to review a bill’s rule.

In many ways, there are moves to address some of these changes in legislative behavior. The passage of a rule requiring legislation be publicly available for at least 72 hours before consideration would reduce the ability of the majority to rush legislation. There have already been some reforms to the Rules Committee, while others continue this discussion. Earmarking is reduced and vastly more transparent. These are not fixes to get back to some “normal” legislative process that no longer exists, but ways to adapt to the way the legislature works in a partisan and electorally focused era.

There are countless debates circulating regarding how best to adapt to this new legislative era. Transparency advocates should be aware of the way Congress has changed and focus on adapting the transparency agenda to reflect this changing dynamic rather than seeking to return to a “normal” procedure that has long since become irrelevant.