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Perspectives on Congressional Policymaking

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>>John Haskell: Welcome,
everybody, to the Library of Congress this afternoon. I’m John Haskell, the
director of the Kluge Center at the Library of Congress. In the words of the charter,
our center was created, quote, “to reinvigorate the
interconnection between thought and action through conversations
and meetings with members of Congress, their staffs, and the broader policy-making
community in order to bridge the divide
between knowledge and power.” So on a day-to-day basis,
what that means for us is — at Kluge is that
we support scholars in residence here doing
innovative and specialized work, and we project scholarly
work to a broader audience in events such as this one. We have a few other events. I hope you take note
of material we have out in the front
when you came in. Evan Thomas and OC Thomas, who
wrote the recent biography — acclaimed biography of
Sandra Day O’Connor. We’ll be hearing conversation at
noon on the 22nd of this month with Colleen Shogan,
assistant deputy librarian. October 30, Ronald White,
who you’ve probably heard of, biographer of Lincoln and
Grant, will be talking about leadership lessons from
Lincoln and Grant, on October 30 at 4:00, reception to follow. And on November 7, for kind
of a political junkie audience like this, we have dynamics
of the presidential primaries. I’ll be talking with Amy Walter
of “The Cook Political Report” and Julia Azari, who was
recently at resident — in residence at the
Kluge Center, who’s at Marquette
University, and is active in scholarship in that area. So I hope you’ll consider
coming to those events. Let me introduce the esteemed
panelists here this afternoon. First, Frances Lee, who
is a professor of politics at Princeton University. You can see in your
bio more details. She came to Princeton
after 15 years at the University of Maryland. She’s the author of
“Insecure Majorities, Congress and the Perpetual Campaign”
in 2016, and “Beyond Ideology, Politics, Principles, and Partisanship in
the Senate,” 2009. Also, those of you who
have been in college and took a Congress class
anytime in the last 30 years or so [laughter]
probably were assigned — since it has about 90%
market share, “Congress and Its Members,” which Frances
is one of the principal authors of that over the last, what,
10 or 15 years, I think. She was in residence at the
Kluge Center just this summer. She just left that residency
to go back to Princeton, and she’s been working on a book
that’ll be coming out next year with Jim Curry of the University
of Utah, “The Limits of Party, Congress and Lawmaking
in a Polarized Era.” Lamar Smith is also
on the panel, former Chairman Lamar Smith. You know, I’ve learned
a lot about Lamar Smith in the last couple of years since coming to the
Kluge Center. I didn’t know him before. I’ve known Frances for
probably at least a decade, and worked with her
on many things. But what I’ve come to find about
Lamar Smith, since he is — he’s been such a fan of
the Library of Congress. He just retired from Congress
in January, as you may know — is that he’s — regardless
of one’s politics, he’s a true gentleman, respected
on both sides of the aisle, and we’re honored to have him
as a champion of the Library. I should also note
that we had Karl Rove at an event this summer,
and he pointed out to me that he was the campaign manager of his first campaign
[laughter], and wanted to trumpet —
this is back down in Texas. He wanted to trumpet the
fact that Lamar was captain of the rifle team when
he was at college. He didn’t include in there that the rifle team
was at Yale [laughter]. He didn’t think that
would sell quite as well. That’s how Karl Rove
told the story. Lamar might be able to correct
a thing or two about it. So Lamar represented — is
that more or less accurate?>>Hon. Lamar Smith:
Yeah, close enough.>>John Haskell: Close enough. Lamar represented San Antonio
and environs for about 32 years in Congress, 21st
congressional district. In the modern era, there haven’t
been other members who’ve chaired three committees. He chaired three committees
in his time in Congress. He was, over the last
several Congresses, in a study by the
University of Virginia and Vanderbilt University, named one of the most
effective members, including the most effective
member in the 112th Congress. And was policymaker of the year
in 2011, according to “Politico” and “Politico Pro,” largely
because of his effort in patent reform legislation. So what we’re going to do now —
move directly to the discussion, is Frances, based on her
research this summer, is going to give a
short presentation, and then we’re going
to talk about it, see if we can poke
holes or whatever. So I’m going to turn
it over to Frances, who’s going to do a
short presentation. The slides will be
up on the screens.>>Frances Lee: I want to
start by thanking John Haskell and the Kluge Center for
inviting me to participate in this event, and
Congressman Lamar Smith for being here with me. Our goal today in
this discussion is to examine how congressional
lawmaking has and has not changed. We want to get a more complete
perspective than is normally on offer in media
portraits of the institution. Congress has never been
popular, and it’s always easy to market stories claiming that congressional
performance is worse than ever. But our goal in this panel
is to take a balanced look, considering continuities
as well as changes in congressional performance. I’m going to highlight
one key change, which is that political
incentives today are more unsuited to bipartisanship
than in other eras. It’s harder to reach bipartisan
agreements than in the past, but nevertheless, there is
an important continuity, which is that bipartisanship
is no less necessary for legislative success. Even though Congress is
much more party-polarized, it has not gotten any easier
for majority parties to succeed without winning at least some
buy-in from the opposing party. In understanding why political
incentives are less aligned for bipartisanship, we
need to pay attention to the intense partisan
competition of today’s era. This is evident in
a number of ways. One, we’ve had divided
government 75% of the time since 1980. In the House of Representatives
since 1980, Democrats and Republicans have
each held majority status for 10 congresses. In the Senate, Republicans
have held a majority for 11 congresses since
1980, and Democrats for nine. The evenness of this
partisan balance is not normal for U.S. history. This first figure
displays a simple measure of two-party competition
since the Civil War. It’s just the average of
the Democratic Party’s share of the vote for president,
the Democratic Party’s share of House seats, and
of Senate seats. I then take the difference from
50, so that I can show periods with Democratic majorities
above the line, and periods with Republican
majorities below the line. And taller lines mean that a party is more
dominant in that era. The period since 1980,
circled on the graph, stands out from this long
time series for its narrow and switching majorities. The more typical pattern
over this long period is for one party to
enjoy a significant, persistent advantage
over the other. The Republicans were dominant in
national politics for a decade after the Civil War, and then
again between 1896 and 1932. Democrats were similarly
dominant for decades after the New Deal. The period most similar to today’s competitive
environment is the partisan stalemate after the Hayes-Tilden
contested election of 1876 until the elections of 1894. These decades of the late 19th
century are probably the most analogous period to the present, a period of close
party competition, divided government,
policy stalemate. There were two other
short periods of close competition
during the Progressive Era, and then under Truman and
Eisenhower, but we are today in the midst of the longest
sustained era of near-parity between the parties
since the Civil War. Competition for power reduces
incentives for bipartisanship, as is evident in the
rise of party conflict in roll call voting in
both House and Senate, shown here in this graph. It is hard for a minority
party to work productively with the majority party at the
same time as it’s contending that the majority party’s doing
a bad job, and should be thrown out of power at the
next opportunity. When the minority party
works productively with the majority
party on legislation that both parties can support,
it effectively gives us a stamp of approval to the status
quo allocation of power. It’s tantamount to conceding
that it can achieve things that the party wants, even
though it’s in the minority. During the long era of the seemingly permanent
Democratic majority of the 20th century, it
was easier for chairs and ranking members
to have productive working relationships. For much of that period, the Republican Party did
not perceive a chance to win majority status. A minority party under those
circumstances has less incentive to withhold cooperation in favor of proposing partisan
alternatives. Today, both parties
see themselves as potential majority
parties, and are more reluctant to jeopardize their
argument for retaking control by working cooperatively
with the opposition. Close competition for power
also reduces incentives for bipartisanship, because the
minority party anticipates being in a stronger position
after the next elections than it currently is. It thus is less willing
to strike any deal now, but despite these incentives,
however, bipartisanship remains in most cases the only viable
path to success in Congress. Congressional lawmaking is
still almost always bipartisan. Despite intense and
rising partisan conflict, Congress does not
legislate on the basis of narrow partisan majorities. Today’s Congress does not enact
more laws on party-line votes than the Congress of the 1970s. This figure shows the
average percentage of minority party members
voting in support of legislation that successfully
passes the Senate. So as you can see here, the
average rarely dips below 50%, the benchmark line, meaning that most legislation
garners majority support from both parties. Most legislation that
succeeds passes with majorities of both parties in favor. This is true for the 12 to 15
most important laws enacted in a Congress, shown
in the red dotted line, as well as all laws,
shown in blue. This pattern is not driven
by divided government. Divided government has been
the norm in recent years, but there have been
some congresses with unified control
during these periods, and there’s only modest
differences between congresses with unified and
divided control. The 111th Congress of
Obama’s first two years stands out for low levels of
minority party support on laws, as does the 103rd Congress
of Clinton’s first two years with unified Democratic control. And you can see those
outliers on the graph. But the same pattern isn’t
present for unified governments under George W. Bush and the
108th and 109th Congresses, and even the 115th Congress
under Republican control in President Trump’s first two
years isn’t out of the ordinary, in terms of bipartisanship. The same is also true of
bills that pass the House. The most striking thing about these data is a
lack of any trend line. Even though the parties
have polarized in Congress, there’s been effectively
no change in the frequency with which the minority
party legislates — the majority party
legislates over the opposition of the minority party. Most laws today continue to attract significant
minority party support, just as they did 40 years ago. To delve more deeply into
this pattern, my co-author, Jim Curry of the University of
Utah and I focused specifically on the capacity of majority
parties to enact their agendas. We wanted to know whether
today’s more-cohesive parties are better able to enact
their policy priorities than the less-cohesive
parties of the 1980s. To do this analysis,
we compiled a list of all the priority agenda items for each congressional
majority party, each Congress going
back through the 1980s. To do this, we read the opening
speeches made by the Speaker of the House and the
Senate Majority Leader, taking note of the issues that
they flagged for attention in the upcoming Congress. We also looked at the bills that
were inserted into, you know, the low bill numbers reserved
for the Speaker of the House and the Senate Majority
Leader, the HR one through 10 in most congresses,
S one through five. These efforts yielded a list
of 265 priority agenda items over the period between
1985 and 2019, and then we just constructed
legislative histories of each of these agenda items, asking whether majority
parties achieved most of what they wanted
on an agenda item, whether they achieved
some of their goals. Or whether they achieved
none of their goals, and that legislative
drive failed. Our first finding is that the
modal outcome is failure 48% of the time on average
over the period. Roughly half the time,
the majority party fails to achieve any of its
goals on an agenda item. That means that the
legislative drive falters, and no law is enacted. Congresses with unified-party
government don’t fare that much better than congresses
with divided-party control. There’s a 50% failure rate
in divided government, as compared to 43% failure
rate in unified government. The second-most likely
outcome, 31% of the time, is that the majority party
achieves some of its goals, but has to compromise
on key items in order to get the bill through. The least-likely
outcome is a clear win. This is 20% of the time, where
the majority party does most of what it set out
to accomplish. Clear victories are more likely
to happen in unified government than in divided government, but
failure is more common in both. The bottom line is that majority
parties can rarely deliver on their agendas. Clear partisan victories
are highly unusual. Our next question was, “Well,
when the majority does succeed in getting some or most of what
it wanted, how did it do so?” It is unusual for
a majority party to enact an agenda priority over
the opposition of a majority of the minority party in
both chambers of Congress. Over the whole period since
1985, this only happened on 20% of majority party
agenda successes. The 111th Congress, Barack
Obama’s first Congress, stands out as highly
exceptional here. Every agenda item on which
the Democrats succeeded that Congress happened over the
opposition of most Republicans. Democrats did not succeed
on an unusual share of their agenda items
that Congress, but when they succeeded, they did so on a partisan basis
more often than is normal. But this was not the
start of a trend. It was just a highly
unusual Congress. Instead, the far more likely
way a majority party succeeds on its agenda items —
this is 78% of the time — is with the support of a
majority of the minority party in at least one chamber,
shown here in blue. In fact, normally,
84% of the time, the majority party
has the support of at least one top leader
of the minority party, meaning the Minority
Leader or the Minority Whip in at least one chamber
of Congress. Since 1985, there have only been
12 majority party agenda items on which a congressional
majority party got most of what it wanted, and
did so over the opposition of a majority of the minority
party in both chambers, and over the opposition of
the elected party leaders of the minority party
in both chambers. The bottom line is that our
compromise-inducing political system still requires
bipartisanship. This is particularly
true under conditions where the two parties are evenly
balanced in electoral strength, and therefore have
to share in power. Bipartisanship is how things get
done today, just as in the past. In most cases, the
only alternative to bipartisanship is gridlock. Political incentives
make it harder to achieve bipartisanship,
but it’s just as necessary for legislative success as ever. Thanks.>>John Haskell:
Thanks, Frances. Point out — I feel a
little out of place. I’m the only one up here without
a southern accent [laughter]. So if I need to talk a little
slower — I don’t know. For you guys, do
I need — anyway. So in your experience,
Lamar, you know, what’s your response to that? I mean, were you able — I mean,
you’re just a sliver, you know, even though you had very
significant committee chairs at science, and at judiciary. That’s only a small
percentage of the larger picture of what Congress is up to. What’s your experience in
terms of on the partisanship, bipartisanship with
your legislation?>>Hon. Lamar Smith: Before
I answer that question, you won’t mind a pitch for the
Library of Congress, I assume.>>John Haskell: I
think we can stand that.>>Hon. Lamar Smith: And
[laughter] that is just to thank you all for being here,
and just to say what we all know to be true — and that
is that the Library of Congress is just a
magnificent structure. And the institution is
impressive in every respect, and every activity,
every function, every event that is hosted
by the Library of Congress — and this sounds a little
serving, I realize — but is worth coming to,
just because they do such a great, great job. And to go back to your question,
though, John, real quickly — and I wanted to mention —
Professor Lee’s thesis — it’s counterintuitive. Because we wouldn’t have
expected today that, given the amount of
partisanship that we perceive — we wouldn’t have thought
that the number of bills that are enacted today would
be pretty much constant over the last 30 years or so. And that is counterintuitive, just because it’s not
what we would expect, but on some level — I
guess I’m looking at it from a congressional
point of view. On some level, it’s a
little bit reassuring that, despite the partisanship,
Congress is still productive. Now, it may not be a high
level of productivity, but at least it’s been constant
as it’s been going through. And one of the explanations
I think for — and maybe a — something — a metric to keep
in mind is that every year, there’s something like
10, to 12, to 13,000 bills that are introduced by
members of Congress. Only 3% become law. So it’s only one out
of 33 chance you have at passing a bill if you
introduce a bill, and so, that productivity is low, but at least it’s fairly
constant across the board. As far as the thesis
of bipartisanship, I just couldn’t agree
more, and I might try to elaborate a little bit on it. And that is, you learn very
quickly, if you’re a member of Congress, that if
you want to pass a bill, you’re going to have
to amend it. You’re going to have to make
compromises, because the member of Congress who introduces a
bill and says, “I’m never going to change a word,” is
guaranteed to have one result, and that is they will
never enact legislation. So that partisanship that has
remained constant as well, and this is great
original research, and I think will be
valued for years to come. Because it shows Congress in
a little bit different light. But nevertheless, that bipartisanship is
absolutely essential, and I’ll tell two quick stories. And this is a time for me to
acknowledge that, unknown to me, I have former staff members
with whom I have worked who have packed the audience. And there are five of them
in the middle back here. But the reason I want to single
them out and make clear — chief of staff, and personal
office chief of staff on committees, staff director of
counsel, subcommittee director, and all the others — that
nothing we would’ve done in these committees,
be it science committee or judiciary committee,
would have happened without just superb staff who
are dedicated to the interests of the country, and
to the interests of the committee as well. So I thank them publicly
for making me look good when I happen to look
good, but they do not need to assume responsibility
for when I looked bad. But their efforts
are appreciated. On the science committee — and
this is going to surprise you, because this goes
contrary, again, to what you might’ve
read or thought. But on the science
committee, I think we took about 34 bills to
the House floor. Thirty-one roughly of the
34 were bipartisan bills. Only three were absolutely
partisan, where only one party
took them to the floor. You never read about
the science committee — and I don’t know about
the other committees. So 90% of the legislation
we took to the floor was bipartisan, but there aren’t any
stories about that. The stories are about
the 10%, the three bills that were partisan, and
that’s what, unfortunately, the media seems to focus on,
because there’s conflict there. There’s partisanship
there, and so forth. But I think the unwritten story
is the degree of partisanship that continues to go on.>>John Haskell: So on
those bills, I mean, the ones that were partisan,
that only got Republican votes on the House floor, did
they — were they –>>Hon. Lamar Smith: Yeah,
they never became law, so –>>John Haskell: —
they never became law. That’s a lesson, too.>>Hon. Lamar Smith: — that
proves the thesis as well. And I — talking a little bit
longer than I expected to, but one quick story from
the judiciary committee — and — is this. And when I became chairman
of the judiciary committee, I was a conservative Republican. The ranking Democrat was John
Conyers from Detroit, Michigan, and he had 100% liberal
voting record. And so, we were on opposite
poles on the political spectrum, and the week I became chairman of the judiciary
committee, I went to John. I said, “We’re not going
to agree much on issues, but I’d like for — I’d like
to look for common ground, because the judiciary committee
is not known for enacting bills, and I’d like to be a productive
committee and committee chair.” And so, I said to John — I said, “I’d like to try
something new, and that is — would you agree with me that we
would never mention each other’s name personally in any
context whatsoever? We would never mention each
other’s name in a hearing, at a mark-up, in a
speech, in a news release, so that we would
disagree on the issues, but we wouldn’t be attacking
each other’s integrity.” And he thought about
it for 30 seconds, took out his hand,
and we shook on it. For two years, we never
mentioned the other person’s name, and every other
weeks, our — I asked that our chiefs of staff
get together for lunch and look for areas where we might
have some common interests. And yes, we’d each
introduce these big bills, but where those concentric
circles might overlap, and it might just be
a part of those bills, we went forward with that. And at the end of the Congress, we had actually enacted
more bills than any of the other 15 committees
in Congress, and it was because of
John Conyers’ willing to put aside personalities,
and put aside easy — and me too, I guess — put aside
the personal attack in favor of trying to be constructive
and get legislation passed. So I think it can be done. It really depends
on the individuals. It takes two to tango, and so, you have to have
a majority member and a minority member agree
to that kind of a perspective. But I think sometimes
it can work.>>John Haskell: Now, Frances,
on some of the data you threw out there, I did
a little research. I didn’t tell you about this,
but a national journal reported in the early ’80s
that the space — in the 435 members of
Congress, the space of overlap between the most
conservative Democrat and the most liberal
Republican was 350. And at that time, 57 of the
100 senators fit in that space. And then, when you fast
forward to the last few years, in the Senate, it’s been
zero overlap in the space, and in the House, it’s been,
you know, anywhere from — depending on the
year, five to 15. So just like you were
suggesting, I mean, the ideology homogeneity
has increased tremendously within the parties. So what’s getting in the
way of them being able to more their agendas better, given that they don’t
have the — it looks like they don’t have
the same internal disagreements that they had, even as
little as 35 years ago?>>Frances Lee: Well, I’ll start
by saying I have some questions about those sorts of
measures that claim to show that members lack any
ideological agreement across the aisle these days. Those are based on
roll-call votes generally. If we look only at the
roll-call votes that result in the enactment of legislation, there hasn’t even been any
polarization in Congress. It’s only if we look
at the full, aggregate roll-call record. A lot of those roll-call votes
are messaging votes, are — you know, are designed to
highlight the differences between the parties,
to communicate those to external constituencies. They’re not resulting
in legislation. If we look at the
consequential votes, there’s been much less
change in Congress than those data would portray. And what we find is,
when you look at — when parties try to move
forward on their agenda items, they often struggle to get
on the same page internally. Now, we don’t see
parties divided along — internally along ideological
lines the way the old Democratic Party of the 20th century was,
with the southern Democrats versus the northern Democrats. There’s less — no question, there’s less ideological
diversity between the parties, but even with that said,
it’s not easy for parties to get together on
major legislation. That — it — the
issues are complex. And so, they struggle to get — to move forward on
their agenda items. And it’s just as common for
majority parties to fail because they can’t get a bill
out of committee as to fail because the minority
party is blocking them through a filibuster
in the Senate, or some other veto
player wielded by the other party
gets in the way.>>John Haskell: So,
Lamar, one thing that — sort of to tie into that is
that — but just as an observer, you know, I would see
Republicans get the majority. You know, there’s been
all these flips, as — in the last few years,
last few — couple decades, like Frances —
and yet, the new party always — you know, the story
is, they’re going to get stuff done,
get their stuff done. Now, you were there, and what’s
your experience with that, whether you were
switched to the minority or becoming the majority?>>Hon. Lamar Smith: Maybe I
need to describe the difference between being the
majority and the minority. I’ve been in the minority twice. Believe me, I would never
voluntarily go back. It’s hard to describe what it’s
like being in the minority, and I wish I could say the
minority was more influential. But we cast about 500 votes
every Congress, every two years. When you’re in the minority,
you’re going to lose 499 out of those 500 votes, and
that’s a little dispiriting, knowing that every time you go
to the House floor, you’re going to be on the losing end. And I’ve heard it said that
being in the majority is like riding a horse
in the parade. Being in the minority is
like walking behind the horse in the parade [laughter]. It’s almost not polite, but
that’s a little bit too graphic. But anyway, you get the idea that majority is
far more powerful, I guess I should
say, than otherwise. I want to add one more thing
to what Professor Lee said, and you mentioned
the filibuster. I guess from — I’m looking
at this from the House point of view, but I attribute
a lot of our inability to enact legislation to the
existence of the filibuster. And the filibuster, of
course, is a threat by a member of Congress — a senator. They can be sitting
at their desk. They pick up the phone. They threaten to filibuster, and
suddenly, even for an amendment to come up on the Senate floor,
much less to pass legislation and bring legislation
up to be voted upon — suddenly, the threat of the filibuster triggers a
60-vote requirement to bring up that amendment, or to bring
up that piece of legislation. That is a high hurdle, a very
high hurdle, particularly if the majority party
only has 52 or 53 votes. They’ve got to find
seven or eight from the other side,
and that’s not easy. But the frustration from a House
member — in the last Congress, when we finished at the end
of last year, the House had over 400 pieces of legislation
sitting on the Senate doorstep, over 400, and almost all of
those did not get brought up because of the
threat of a filibuster. Of course, there’s a
time factor as well, but a lot of those bills
were not controversial. A lot of those bills would
pass the House with no — under what’s called —
would be unanimous consent, and not a vote against them. But they couldn’t get
them past the Senate because somebody would
object to it, and they’d have to get 60 votes and take
several days to debate that, and decide whether
to go forward or not. So to me, if we eliminated
the filibuster, there would be other
mechanisms in place, I think, to stop bad legislation, but
at least we would for the — on behalf of the American
people, start debating and voting on more
pieces of legislation. And then maybe we could
increase that 3% of the bills that actually get enacted.>>John Haskell: Yeah, so one
thing, Frances, when you were — when you had your charts up,
and you have a dramatic increase in partisan roll-call
voting at the same time as legislation needs
to be bipartisan. And remind us how that works. How do you square that circle?>>Frances Lee: Well, a lot
of bills that pass the House on partisan lines end there. They don’t go through the
full legislative process. So there’s a screening. So that needs some
level of bipartisanship to get all the way through
the process, in most cases. Part of that is the story of
the veto players in the Senate, the Senate filibuster, the need
for 60 votes in the Senate. That’s — that is very — that
is a very important feature of how Congress works today. But it’s also the case that even
though the Senate filibuster is the most common reason why
the majority party fails on its agenda items,
the most frequent, the second-most frequent is
an inability to get a bill out of committee, a
committee that you control, that the majority
party controls. So they still struggle with
intra-party disagreement. They don’t — it’s not as
public as when failures are due to being blocked with a
Senate filibuster, you know, a failed cloture vote
on the Senate floor. These are very public. The news media focus a great
deal on partisan conflict. And so, when it’s
surfaced in this way, it becomes a front-page story. When bills fail quietly in
committee, it’s less of a story, but that’s very common as well.>>John Haskell: So one of your
messages — your key message, or a key message is that just as
much bipartisanship in the laws that are passed now, significant
laws, important laws, substantive laws, as before. Other scholars have found that
— and I’m curious how this — exactly how this is
measured — that there’s — that Congress is passing as
many pages of legislation, and even as many provisions
into law as they did 30, or 40, or 50 years ago, which
is really showing they’re about as productive
as 30 or 40 years ago. So how are they measuring — how
are scholars measuring that — you know, the pages
thing is one thing, but how are they measuring,
let’s say, provisions?>>Frances Lee: Well, they — I
mean, that’s via the U.S. code. So they look at how legislation
is codified, and so they — counting the provisions that are
enacted, Congress by Congress. So it — the conventional wisdom
that Congress is gridlocked and gets nothing done just
isn’t borne out by the data. The data do not show this. The data show that
Congress continues to produce legislation,
in terms of, you know, the amount of legislation,
sheer quantity, at a relatively constant rate. In order to judge Congress
as being gridlocked, you have to have
another standard. You have to have
a list of things that you think Congress
should be working on that it’s failing to act on. So — and in many cases,
that’s ideologically inflected, but if we look just at the
data, we don’t see this story of Congress being
less productive today than it has historically been. It’s hard to act — it’s hard
for Congress to do anything.>>John Haskell: It’s
hard to do this stuff. Did you have something –>>Hon. Lamar Smith: I was
going to say that — and it’s — I agree 100% with what Professor
Lee has said, that we’re just — Congress is just as productive
today as it has been for the — anytime in the last,
say, 30 years. But it’s a low level
of productivity, and I think that’s
what’s frustrating for the American
people, is that, you know, we’re squabbling. We’re arguing. We’re sometimes calling
each other names, and maybe it’s just
good to remind ourselves that democracy is messy. Remember Winston
Churchill’s quote that democracy is the
worst form of government, except for all the others? I mean, we can be grateful that
we had this kind of open debate. Yes, it’s frustratingly slow, and sometimes we
just avoid going over the cliff at
the last second. But nevertheless, it does work, as Professor Lee has
been pointing out, and it’s not working
any less so today. But democracy is not
fun to watch, but it — in the end, I think it
does produce results, and maybe not all
the results we want. But it’s still —
it’s still there. And so, that’s — that just —
I try to reassure myself as much as I’m trying to
reassure you all.>>John Haskell: — you know,
it’s frustrating, but, you know, you can’t overstate how
much this flies in the face of conventional wisdom.>>Hon. Lamar Smith: yeah.>>John Haskell: I mean, there’s
not a day, certainly not a week that goes by where
you don’t read that Congress is unproductive. Just last week, quote from — in “Politico” that
there was an assumption of an unproductive
Congress where, quote, “fewer bills voted
on, fewer laws made, more of those laws
naming post offices or something else
inconsequential, and so on.” You see that all the time. Scholars say that.>>Frances Lee: But
there’s just –>>John Haskell: So why
exactly is the conventional wisdom wrong? What are they miss —
what is it missing? I don’t know what the
conventional wisdom is.>>Frances Lee: — they count
the bills enacted, and so, there are fewer laws
being enacted. But the laws are much longer, so
that the amount of legislation, as gauged by new laws
enacted, new provisions, new pages of legislation
— that’s not come down. So there’s more omnibus
legislating, fewer legislative vehicles
successively navigate the legislative process, but the — the amount of legislation
is — has not come down.>>John Haskell: So that’s — but you all have hinted
at significant ways in which Congress has changed,
particularly what you said about the increase in the
filibuster, cloture motions. What ways have you observed that Congress has
changed significantly? You know, you were
there 32 years. You go back into the same — more or less the same
period that you’re studying.>>Hon. Lamar Smith: Right. Well, I can speak maybe
a little bit about –>>John Haskell: At least
in the lawmaking process.>>Hon. Lamar Smith:
— how it’s changed. I guess I don’t see that much
change from that point of view, and the first half of that, I was not even a
subcommittee chair. So it took a while to
get to be in a position where I might actually
enact legislation, but there was partisanship
back in those days, just like there is
partisanship today. So it’s not like
partisanship is a new — is a new aspect of Congress. I think maybe the untold story
is not only the bipartisanship that continues to get passed, but also the bipartisan
friendships that exist. They never get told about,
because they’re not conflict, and they’re contrary to
the partisan narrative that so many people feast upon. But I think, throughout the
time I’ve been in Congress, there have been wonderful
friendships that have been forged. Legislation has passed. We’ve learned about only
bipartisan legislation is going to pass, and that’s been
true for the last 30 years. The only thing I
noticed from one of Professor Lee’s earlier
charts, and I will try to explain this,
if there’s a way — the last 30 years have
been pretty, well, constant in the number of
bills that have been enacted. But if you go back
to the ’50s and ’60s, twice as many bills got
enacted during that time period, and I’ve been trying to think — and maybe you can give us
your thoughts, Professor Lee. I’ve been trying to
think what explains twice as many bills getting
passed in the ”50s and ’60s versus the last 30 years. But I think, for the first
time, I’m beginning to think that it may be a factor, and may
depend on more than Congress. It may depend on who’s
president of the United States, because in the 1960s, you
had the JFK assassination. You had LBJ become president,
and he passed this flurry of activity — I mean, had this
flurry of activity passed in any of number of bills —
Civil Rights bills, all the other bills, in part
because of the assassination that had occurred and the
need for the country to see that there was movement,
and action, and success, and productivity in Washington. So I think at least in the ’50s
and ’60s — and then, of course, in the ’50s, we had Eisenhower,
who was pretty low-key and easygoing, and
maybe legislation — bipartisan legislation
got more — got passed more because of him. So I guess I’m just
trying to think out loud. What is it that accounts
for twice as many bills being
enacted in the ’50s and ’60s versus the last 30 years? I’m just simply saying
that whoever is in the White House
might have some impact, as well as the Speaker
of the House. I think maybe that’s my point,
but I think a lot of it depends on not personality — on a
personality, but it depends on individuals, and
their desires, and their skills,
and their goals. And you can’t — you
can’t discount that factor when it comes to legislation.>>Frances Lee: Well, legislative practices
have changed greatly over the time period. One key practice
that has changed is that legislation is just a lot
longer, that, you know, you — it used to be not
unusual for Congress to pass a five or 10-page bill. And you rarely see that anymore. So there’s more centralization
of the process, that the party leaders
play a bigger role in putting together these
big legislative packages that then get cleared, that committee chairs
work more closely with party leaders
today than in the past. And especially during — if we go back to the era
when committee chairs were — you know, served because
of their long seniority, their tenure in office, or
tenure on the committee, that that gave them
a base of power that could sometimes put them
at odds and allow them to be at odds with the
leaders of the party. We see bills that get
enacted today that don’t go through a committee
process, that, you know, they go around so-called
“regular order.” That happens with a
reasonable degree of frequency. It used to be that bills
that were passed had gone through the committee process
in all cases, nearly 100%. Now, it’s more like 60% of
bills that pass actually went through a committee process. So there’s a lot of alteration in how Congress works
internally, and yet — and when we look at
the final outcomes of the legislative process,
they are similarly bipartisan, and there’s a similar
amount of legislative pages and provisions enacted. So we can — that — there’s
been a great deal of change in the process, and yet, not nearly so much
change in the outcome.>>John Haskell: So what do
you two think might be impacts of that change? What difference does it make
whether it’s a more open process with committees, and members
amending on the floor, and then leaders not
controlling everything? I mean, what differences
does that make to you? And maybe it didn’t in
your individual committees.>>Hon. Lamar Smith: Well,
on a couple of levels, one, you’d like to think that, with a
more open process, you’re going to end up with a better
product, and better legislation. But when it comes to major
pieces of legislation, it’s really the party
leaders that are going to determine what goes
to the House floor. If you think of a tax bill,
if you think of a trade bill, if you think of a healthcare
bill, or in the future, if you think of an immigration
bill, those are going to be pretty much determined by
the party leadership negotiating with the other party leadership. But on the whole, I’ve found that committee chairs are given
a great deal of flexibility, and a lot of freedom to bring up
legislation that they want to, to have hearings
that they want to. So there’s — it’s a combination
of leadership in the House and the Senate, and committee
chairs, but it really depends on how major the legislation is. I think that most — the
more important legislation, the more major it is, the more
likely the leadership is going to get involved.>>Frances Lee: Well, it — when we have fewer votes on
the floor, when the votes that occur are more managed — so, you know, very
little legislation comes up under an open rule today. Those used to be
much more routine. That means that there’s been
more consideration taken into how — how is this
vote going to play out? What will it — how will
it portray us vis-a-vis the opposing party? So this is incidentally one
of the reasons for the rise of partisan conflict, is
that votes that get — votes that occur are more
likely to show the parties in opposition to one
another, and less likely to show the parties
internally divided, because they’ve been
pre-screened. This is happening in both
the House and the Senate. In the Senate, this happens
through the heavier-handed use of filling the amendment tree that the Senate Majority
Leader deploys, but the upshot of these changes is that we see
less internal party divisions on the floor than actually exist
in the party, that those are — that there’s less public
display of internal frictions within the party than
there used to be. I mean, if we go back to, you
know, the 1960s, Democrats — Democrats, the majority party
Democrats, didn’t even meet in caucus with any
degree of frequency. They’d meet at the
beginning of the Congress, and they would organize
the Congress. Then they wouldn’t even meet. So they’re not —
parties are not working — are working together much
more behind-the-scenes today. And so, you see less of the intra-party
divisions than we used to see. But they are not — they
have not disappeared. There’s not the deep ideological
divides, but there’s still a lot of complexity within
the parties. And so, it’s less
open to public view.>>John Haskell: You know,
one thing I’ve noticed in the media is there’s
all these stories about newer members, freshman
members being frustrated. I wonder — I wonder if that’s
a new development [laughter].>>Hon. Lamar Smith:
Talk about a –>>John Haskell: Is
that the same old story?>>Hon. Lamar Smith: — talk about a slow
pitch over home base. Yeah, no, no, that hasn’t
changed at all, unfortunately, with the media, and as
we’ve already mentioned, the media seems to fixate on
conflict and partisanship. The most interesting
thing I saw recently — I just saw an hour or so ago a
new Rasmussen poll on the media, and this is astounding — that
they announced today that 69% of independent voters are angry
with the media, and over 60% of all voters are
angry with the media. They’re not angry with the media
because the media are objective, or pointing out the
occasional good story. It’s the other way around. So maybe the media
will get the message, based upon popular sentiment,
that there are other stories to be told, other than
just partisanship, and other than just conflict, and to the extent those
stories can be told, I guess — I think the American people
will have a more accurate view of Congress. And I think the American
people will be more supportive of what we do.>>John Haskell: So a last
observation that I want you guys to comment on before
we move to questions from the audience is
that, you know, Mr. Smith, when you were talking
about how Congress is ugly. And that’s how, you know, the
sausage is made, you know, the sausage factory, it — for
some reason, it reminded me — I think it might be a Mark
Twain quote, where he said that Wagner’s music is better
than it sounds, you know, and the idea that maybe —
maybe Congress just is ugly, you know, in its processes. But maybe the results,
you know –>>Hon. Lamar Smith:
That’s true.>>John Haskell: — it’s sort
of — that hasn’t changed –>>Hon. Lamar Smith:
That’s true.>>John Haskell: — whether
it’s good music or not is kind of in the eye of
the beholder, right?>>Hon. Lamar Smith: There’s
another good Mark Twain quote that all members of Congress
should adopt, and it is — he was talking about
in the book — whether it’s “Pudd’nhead Wilson”
or whether it was “Tom Sawyer.” But Twain is quoted as
saying about a politician, “There was things
that he stretched, but mainly he told
the truth [laughter].” And so, there was — it
was along those lines. By the way, just — I don’t know
what party she would run in, but I would sure like to see
Professor Lee run for Congress. She’d be the most knowledgeable
one voting and running if she were [laughter].>>John Haskell: Well,
I think she lives in the District of Columbia. She wouldn’t have to
vote, so there you go.>>Hon. Lamar Smith: And
I don’t want to ask her about her Princeton
precinct, so [laughter] –>>John Haskell: Yeah. So let’s move to some
questions, and be sure to wait until you get the microphone. This gentleman’s
first right here. You got a microphone
coming right at you.>>Thank you. It’s been mentioned
that filibuster seems to prevent a lot of bills
getting to the Senate, but the Senate Majority
Leader seems to also be able to prevent a whole lot
of things coming through. Now, the House — Speaker of the House is defined
in the Constitution. Senate Majority Leader
is not mentioned at all. I’m wondering — where
did it come from? Where did he get all this power, and what would it
take to change it?>>Hon. Lamar Smith:
— you want to start?>>John Haskell: Little history
lesson here, Frances, or –>>Frances Lee: Well, it’s true that the Senate Majority Leader
is not a constitutional office. In fact, it’s one that
has developed over time, 20th-century development. But you have to — to understand
why the leader has the power he has, you have to look
to the rank and file, that they delegate that
power, that if the — the Majority Leader
of the House — of the Senate would not have
the power that he wields if he did not command
the support of his party. That there is a willingness
to accept leadership in the Senate — in
the House, as well. The members need some
predictability in the schedule, and they know that somebody
has to manage the floor. And so, they defer. They understand that the
price of that deference is that there are a lot of
things that they might want to accomplish that they’re not
going to be able to accomplish. But somebody needs to manage
the Senate floor, and so, they turn to the Senate
leader to do that. And he does so in a way that
takes into account the needs — the political needs
of the party he leads. And so, the issues that
are highly divisive within the majority
party are issues that the Senate Majority Leader
would prefer not to bring up.>>John Haskell: —
and you actually had to cast those votes. I mean, you had to decide
that you wanted Boehner to be on the floor, or Ryan,
or Hassert, et cetera, back to Gingrich, to be
the Republican choice for Speaker, right? So that’s –>>Hon. Lamar Smith:
That is right.>>John Haskell: You had a vote.>>Hon. Lamar Smith: And
also, there are rules. There are rules in the
Senate, rules in the House, and those are just as powerful
as words in the Constitution, because that’s what they live
by, and vote by, and enact by. But — and you’re right, John. There’s a process by which you
decide what goes to the floor, and that’s under
control of the Speaker, and in the Senate,
the Majority Leader. And if they had that power,
they’re going to exercise it, and that’s going to determine
what — and — what gets done. The other thing is, the Senate
takes a lot more time, often, than in the House to
consider legislation. They’ll spend a whole
week on a major bill. We’ll do it in two
days in the House. And so, there’s a
time factor, as well. How many bills do we
actually have time to physically consider? And that’s more of a factor in
the Senate than in the House. We’re — our rules are a
little bit more constraining, and strictly enforced, and in
the Senate, it’s a little bit — a little bit more freewheeling,
and a little bit more informal, and witness the filibuster,
for example. So I know it’s frustrating,
and sometimes, you may not want the
Majority Leader or the Speaker to have the power they do,
but that really is sort of baked into the system.>>John Haskell: That was
very diplomatic for a House — a former House member.>>Hon. Lamar Smith: I’m trying
to restrain myself [laughter].>>John Haskell: What —
somebody have a question? Back there, Giselle
[assumed spelling].>>Thank you for
a wonderful talk, and wonderful comments, and –>>John Haskell: Andrew [assumed
spelling], could you move that mike up to your –>>– sure. Yeah, I’ve got a question
for Professor Lee. I was wondering if your major
thesis has changed or adapted at all when we’re thinking
about foreign policy. So incentives for
bipartisanship — I wondered if that
changes at all when you’re thinking
about foreign policy. Thanks.>>John Haskell: —
that’s a great question.>>Frances Lee: Yeah,
it is a great question. The notion that politics stops at the water’s edge has
always been observed more in the breach [laughter]
than in practice. The Cold War era did
entail a fair degree of bipartisan consensus about
the aims of U.S. foreign policy. So we could point to that
period as unusually bipartisan, at least in the big
picture, but — and then, when there
was divisiveness about foreign policy, it didn’t
break down on party lines. So the Vietnam War, for
example — highly controversial, but it was not controversial
— it divided both parties. It was not controversial
along straight party lines. So — but we — if we extend our
view beyond the Cold War era, we can see that foreign policy
has historically been very controversial in party terms. In fact, the stance of the U.S.
national government vis-a-vis France and England was, you
know, key to the formation of the party system
at the very beginning. So I wouldn’t say that
foreign policy is, you know, outside of party politics as a general rule
throughout U.S. history.>>Hon. Lamar Smith:
I might just add, too, that foreign policy is
one of those rare areas where the president under the
Constitution is given broad powers, unlike maybe some other
areas, or some other topics. It’s also not, I don’t think,
particularly well-known that Congress, under
the Constitution, is given broad responsibility
for immigration. And so, you do have little
pockets of difference when it comes to
different issues.>>John Haskell:
Right over here. Go on.>>Certain aspect of
congressional thing — my understanding is that earmarking is considerably
less now than it was in the past, and I was — I’ve been told that
it was interpreted that earmarking was
sort of the lubricant that caused legislation
to be accomplished. Because then, there was a real
champion that could go out. Do you have any comment
on that in your — because you’ve experienced
both sides, I think –>>Hon. Lamar Smith:
On the earmarks?>>John Haskell: Yeah, why
don’t you speak to that first?>>Hon. Lamar Smith:
Okay, and then — okay. On the earmarks — everybody
may know earmarks are when specific amounts are —
specific funds are targeted or designated for a specific
purpose, and we used to have, years ago — I think
not so much now, but we used to have what we’d
call Christmas tree bills. And people would add all
these earmarks to it, and the leaders oftentimes
added earmarks, in effect — hesitate to use the word “buy
votes,” but to encourage votes. Which is to say, if you
had an earmark for a member that was going to help
something in his district, it was less likely that he would
vote against the legislation, or she would vote
against the legislation. And so, a lot of people thought
it served a good purpose. It sort of massaged the process,
put oil on the creaky wheel, and helped the legislative
— legislature move forward. That said, there are
very few earmarks now. They were banned a number of
years ago, and some people think that we’ve had negative
results, that it’s been harder to pass legislation
without the earmarks. My own feeling real quickly
is there are good earmarks and bad earmarks. The bad earmarks were the funds
that were designated in the dark of night without any public
debate, and nobody knew about them until
the bill was read after it had already
been enacted. The good earmarks, to
me, would be earmarks that served a public service,
or did some public good, that were announced weeks in
advance, and have open debate and transparency about them,
and that were requested by public officials back
home, and not instigated — initiated by members
of Congress. So I think sometimes we —
our reform speaks too broadly, and it would’ve been better to have had good
earmarks and bad earmarks. But instead, we just
said no earmarks.>>John Haskell: What’s
the political science take on this, Frances?>>Frances Lee: Well,
I can say that you — in the interviews that I’ve done
with members, former members, staff, former staff, that
the topic of earmarks comes up a lot, that people do see
that as having had an effect on the ability to do the kind of
wheeling and dealing that’s part of the legislative process. It took away a tool for building
consensus in the legislature. That’s — I’ve heard that a lot. Political science has not
been able to bear that out with data analysis,
where we’re able to show that the earmark ban has
had a measurable effect on bipartisanship
or on legislating. I would say I see it as — as a
— I see two sides of the issue. Now, on the one hand, earmarking
is — that’s Congress’s power. I mean, Congress
represents the public. We have geographic districts. Why should members of
Congress not have the power to designate projects
in particular areas, and allow the executive branch
to make all of those decisions? So I see at as part of
Congress’s power of the purse. On the other hand,
administratively, it was always — it’s quite
challenging for members, when you have earmarks, when
earmarks are a possibility. Then you have to meet with all
the groups who want to come in and ask for an earmark. And then you’d have to
make decisions among them, and for every earmark you manage
to get through, you make — you disappoint others whose
earmarks you were not able to deliver on. So there are multiple sides
to the issue, but, you know, I think it’s not an issue where
I’d feel comfortable saying, you know, in an outright
way, “Well, we know that it’s made a — had a detrimental effect on
the legislative process.” We don’t. We don’t know that. In fact, there are some
reasons to think it’s helpful to the — it’s efficient. It produces some efficiency
in the legislative process not to work at that granular detail. So –>>John Haskell: But
there is the irony that it was a Republican
Congress that did the reform to make it difficult
or impossible to have traditional
earmarks, and they — and that’s effectively
ceded power to a Democratic president
at that time. That was done when
Obama was president.>>Hon. Lamar Smith:
That’s right. And –>>John Haskell: So that
— you know, that was — position, but — gave up
power, which is interesting.>>Frances Lee: — there’s
also a story over time where earmarking had
incrementally grown, that there were more and
more earmarks included in legislation, so that the
practice gotten a little out of hand. And there were — you know, it
was impetus in Congress to sort of try to rein that in. So that’s also — there’s
also a time trend story about the practice
of earmarking.>>Hon. Lamar Smith: — yeah.>>John Haskell: Right in
the middle here, Andrew.>>Congressman Smith,
can you speak to the role that the constituents,
or the electorate, plays in this discussion
about bipartisanship, and effectiveness, and
passing legislation? And as well, maybe or maybe not,
how your tenure in Congress, toward the beginning
or the end — the role the constituents
may have changed or evolved in this process, on finding
the bipartisan compromise?>>John Haskell: So this is one of these people who’ve
made you smarter than you otherwise
would be, right?>>Hon. Lamar Smith: Yes, and Curtis [assumed spelling]
was also legislative director in the office, and Curtis,
that’s a much tougher question than I was expecting
to get [laughter]. And I’m not sure I
totally understood it. You’re talking about
constituents, and what –>>Yeah, so the role — in
part of this discussion, one major role in terms
of being policymakers and lawmakers is dealing with the electorate,
and the constituents.>>Hon. Lamar Smith: — to
reflect your constituents, and try to do with — yeah.>>Could you speak maybe
how that plays into –>>Hon. Lamar Smith:
Oh, that’s — you know, and that is a point
we haven’t even mentioned today. You know, hopefully, a representative does
represent their constituents, and you’re right. In regard to earmarks, I was thinking while we
were talking a while ago — it was constituents who drove
my earmarking years ago money for a dam back in
New Braunfels, Texas, or for a senior citizen center
out in the hill country, or for a library
in another town. And those were all
worthy projects, but they were driven
by constituents. And we also might defend
other members of Congress who feel differently
than I do — we all try to represent
our districts, and the districts
are all diverse. Some of us are representing
inner city, some of us representing
rural areas. Sometimes, it’s a combination. We have an incredibly diverse
country, and so, to the extent that you see diverse views
represented on the House or Senate floor, it is
oftentimes members of the House, or senators simply reflecting
the views of their constituents. Of course, that gets
into another question on the political side. When you have so few
swing districts today, and more solidly Republican
or solid Democratic districts, then you have representatives
maybe favoring a little bit more their constituents who
are primary voters, the so-called base. And that might be
pulling us apart, because it might make
Republicans more conservative than they would be otherwise,
and Democrats more liberal, depending on what’s going
on with the primary, and that’s probably what
they’re worried about. But at base, I think
— and that’s, I think, the point of the question — is we all need to remember that
we’re there at the behest of, and there at the — at the — and we’re thankful
to our constituents for putting us into office. And they’re the ones
we have to represent. They’re the ones we have to
remember that we’re working for. And every now and then,
you’ll come up with an issue that you might personally
feel differently from your constituents,
but that’s one or two percent of the time. Hopefully, the reason
you got elected is because you do represent
your constituents, but all true reform
starts with the people. It doesn’t go top-down. It goes bottom-up, and
those are the constituents that we’re talking about, that
we hope we’re responsive to, and that we need to remember
that we answer to, too. But we need to be
infinitely grateful for the trust they’ve
given us to represent them.>>Frances Lee: I just want to
speak briefly to that point. I’m glad that that was
added to the conversation, Congress’s representative
function. That, you know, when we are
evaluating congressional productivity, we have to keep in mind the enormous
diversity of the United States. And I think that the
folks who are frustrated with congressional performance
are often also people who are embedded in like-minded
networks with their family, or their geographic
area, and they fail to appreciate just how diverse
the views are in the country. But when you get to
Congress, and you have to deal with representatives from
places that are totally unlike where you — you know, where
you’re from, the district that you represent,
and you have to try to find some path forward,
this is challenging. You know, Congress is
tasked with a very hard job, and I think that that’s
often not appreciated. Because people don’t — people, in their own personal
experience, don’t confront the range of
disagreement that members of Congress have to
confront when they want to move forward on legislation.>>John Haskell: I think these
were excellent last comments from both of you,
good ways to end, and I want to thank
our two panelists. And you can continue
the conversation. We hope you’ll join us at
a reception in the back. Thank you both very much.>>Hon. Lamar Smith:
Okay, thank you, John. [ Applause ]

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