Introduction
As American children begin another year of school, Congress is ending its two-year session, making it time for a final report card. In the critical area of congressional reform -- the steps Congress took to fix its internal problems -- mostly failing grades are in order.
The tumultuous elections of 1992 led to the largest freshman class of legislators in decades; for most of them, reforming the troubled institution they were about to join was a central campaign issue. Lawmakers, conceding that their institution was plagued by numerous internal problems, created a special committee -- the Joint Committee on the Organization of Congress -- to reform the institution. Even though that committee's proposals were disappointingly mild, they were fought bitterly by entrenched interests within Congress and ultimately were sabotaged by congressional leaders who stopped most reforms from even coming up for a vote. In retrospect, it appears that the Joint Committee process was designed to fail; and, with a few notable exceptions, Members of Congress expended little time or energy on reforms outside that process. Among the disappointments of the last two years, Congress:
Failed to improve its misleading budget procedures;
Did not fully apply all relevant federal laws to itself;
Failed to eliminate congressional perquisites that are used to influence elections;
Advanced campaign finance reform that would give incumbents even more advantages in elections;
Failed to rationalize the ineffective committee system;
Failed to eliminate party politics from internal congressional administration;
Failed to eliminate deceptive voting practices through truth-in-voting reforms; and
Failed even to address congressional term limits.
This general pattern of failure is the result of opposition from an entrenched leadership which dominated a large freshman class that, despite campaign promises, appeared to care little about reform issues. This pattern, however, was interrupted occasionally by a few individual and institutional bright spots. The House passed a bill applying various employment laws to Congress (a bill now being championed in the Senate by Republican Charles E. Grassley of Iowa and Democrat Joseph Lieberman of Connecticut), and a few subcommittees and non-legislative committees were eliminated. Some members of the Joint Committee, such as David Dreier (R-CA) and Jennifer Dunn (R-WA), distinguished themselves on numerous reform fronts; other Members of Congress, such as Robert Andrews (D-NJ), Mike Crapo (R-ID), Jim Inhofe (R-OK), and Bill Zeliff (R-NH) have capitalized on specific reform opportunities. But these legislators unfortunately are not typical. Indeed, if Congress were a school, most of the class would need to be held back in order to take remedial classes on reform.
Congress's Reform Committee
House: F Senate: F
The central focus of congressional reform must be the quality of legislation that Congress produces; that is, are laws the product of sound policy choices made in a genuinely representative fashion? Judged by this standard, the process that Congress set up to reform itself (like its routine lawmaking procedures), was destined to fail. Despite rhetorical support for the reform process from nearly every Member of Congress, obstacles within the process stacked the deck against reform.
The Joint Committee on the Organization of Congress, created to review and recommend changes in the way Congress operates, originally had no freshman members -- despite the fact that one-quarter of House Members and 14 of 100 Senators were first-termers. Only after one of its members left Congress to enter the lobbying sector was a freshman Representative appointed to the 24-member committee. The fact that the committee was stacked with senior members (their average tenure was over fourteen years) reflects a central problem of Congress's seniority system: junior members rarely are granted seats on important legislative committees and are given little opportunity to do their central job, helping to write legislation. They therefore must focus on seeking repeated re-election -- and frequently on accomplishments unrelated to legislation -- in order to acquire committee positions with significant legislative influence. The overwhelming number of senior lawmakers guaranteed that the Joint Committee would reflect the attitudes and interests of career politicians.
If the outcome of the reform process had matched the rhetoric of the Members who testified before the Joint Committee, it would have been a success. Over the first six months of 1993, the Joint Committee held 36 hearings and heard testimony from 243 witnesses -- including 170 federal legislators -- about what was wrong with Congress. Most witnesses encouraged the committee to produce a bold package of reforms and pledged their strong support; Speaker of the House Tom Foley, for instance, said: "I have come to believe that this is a process that not only can work but must work. I pledge to you my willingness to support you in any way that I can, and I wish you well." (Congressional Record, August 10, 1994, p. H-7332.)
Despite this rhetorical support, however, the Joint Committee's recommendations would have to go through the very legislative process that the committee had been set up to reform -- a process which created countless opportunities for other committees to bottle up, ignore, or fatally modify reform legislation with no guarantee that it would ever reach the floor of the House and Senate. Awareness that any reform plans would have to be acceptable to other committees encouraged a timid atmosphere that produced tepid half-measures coupled with schemes to evade pressing issues.
For instance, the committee never seriously considered the reforms that are most prominent in public discourse, such as term limits, a balanced budget amendment, and line-item veto power for the President. Members decided to bypass such difficult questions as ethics reform, application of laws to Congress, and committee restructuring by calling for more study or for others to handle the issue.
Although the extensive hearings held in the first six months of the 103rd Congress were supposed to culminate in a summer legislative mark-up, the House leadership repeatedly refused throughout the latter half of 1993 to permit the committee to meet in order to report out legislation. This delay eventually led to a November meeting where frustrated Senate members of the Joint Committee split off and held their own mark-up, thus further weakening prospects for a strong reform bill that would permit committee members to form a united front in its defense. The House half of the committee, finally scheduled to meet during the last week of the 1993 session (after which its authority would expire), was split by a series of party-line votes that left few genuine reform proposals intact. Instead, House members produced a bill larded with feel-good but nonbinding resolutions and nearly meaningless reforms, such as recodifying House rules and preventing cosmetic changes in Members' statements in the Congressional Record.
Republican committee members, who could have killed the package on a party-line vote, were divided on whether the resulting package was worth any additional effort. Based on a commitment from Chairman Lee Hamilton (D-IN) to bring the entire Joint Committee package to the floor with "generous" opportunities for members of both parties to amend it, two Republicans -- Vice Chairman David Dreier (R-CA) and Bill Emerson (R-MO) -- voted to report out the committee product.
Although the Joint Committee's proposals were disappointing overall, the House and Senate reports did include some useful reforms. Particularly, proposals for a two-year budget process and limits on committee memberships likely would have led to greater deliberation and some reduction in redundancy. Further, the committee's proposals could have served as the basis for debate and votes on more significant reforms in the House and Senate. The bill's forced march through House and Senate committees, however, gave defenders of the status quo opportunities to destroy even these few useful reforms. Entrenched interests in both bodies mobilized to fight the Joint Committee's already weak product.
Committee chairmen opposed provisions that might eliminate committees. Appropriations Committee members were against a biennial budget process.
The Black Caucus spoke out against committee assignment limitations.
The House Democratic Study Group demanded abolition of the Senate filibuster before any House reform could take place.
The Senate Rules Committee stripped the two-year budget process proposal and the committee reforms from their bill, and watered down the provisions on application of laws to Congress while adding new powers for the Majority Leader and the Appropriations Committee.
In the House, Speaker Foley decided to break the reform package into separate pieces, making it harder to pass each particular reform.
Faced with such legislative roadblocks, the reform bill's momentum crumbled. As a result, the only proposition Congress has even considered is the House-passed Congressional Accountability Act (see section on "Congressional Coverage," on page 8).
Congressional leaders, all too aware of how to capitalize on anti-reform legislative dynamics, were able to slice away at the package's provisions and prospects. If reformers did not understand this initially, the leadership's opposition to and destruction of their efforts certainly should have taught them. This anatomy of the Joint Committee's procedural failures carries within it a central lesson: any serious reform measure will encroach on so many power bases and entrenched interests that the only hope of success lies in bypassing existing committees and seeking votes on the floor of the House and Senate.
Commitment to Reform
House: F Senate: F
Despite low and steadily sinking public regard for Congress (as of August 1994, only 14 percent of the public generally trusts it to do the right thing, down from 24 percent two years earlier (Associated Press Poll taken August 26-30 by ICR Survey Research.)) coupled with broad public support for a wide-ranging spectrum of proposed reforms, individual Members -- with a few exceptions -- have failed to take the initiative to reform Congress.
One problem is that Congressmen apparently are not even discussing reform to any significant degree. Among the 5,400 "Dear Colleague" letters -- internal communications among Members of Congress -- sent between June 1993 and June 1994, congressional reform was mentioned only 27 times, ranking 37th among 38 topics. (Congressional Connection database service.) For every "Dear Colleague" that dealt with the issue, there were over 26 that dealt with health care and over 16 that dealt with crime. Even when addressing constituents, Congressmen rarely mention reform. A Heritage Foundation review of twenty Congressmen's mass mailings found crime addressed 44 times, health care 40 times, and senior citizens' and veterans' concerns a total of 26 times, while congressional reform was mentioned in only 4 instances.
This inaction is startling, given the much-vaunted reform orientation of the huge freshman class of 1992. Freshman members of both parties released reform proposals early in 1993, but few Members have been active since that time. Freshman Democrats were sidetracked after Speaker Foley forced them to vote on a wide-ranging package of anti-reformist rule changes immediately after being sworn into office in January of 1993. Promising that the reforms the freshmen proposed eventually would receive a vote, Foley was able to secure 53 of 55 freshman Democrats' votes on the rules package. The resulting reform package, however, was derived heavily from leadership-supported proposals on campaign and lobbying reform. The 27 freshman reform proposals were steered into one, then another committee of the House Democratic Caucus, which eventually reported five to the full caucus for further review. As of this writing, not one of these proposals has been voted on by the full House.
Freshman Republicans approved a package that contained hard- hitting reforms like term limits, appropriations reform, franking reductions, supermajority voting requirements for tax increases, and a balanced budget amendment. As a class, however, GOP freshmen have been surprisingly quiet, perhaps because of the oft-delayed promise of action on a Joint Committee reform package. The existence of the Joint Committee provided a convenient justification for inaction by congressional leaders, who argued frequently that since the committee was exploring some particular reform, there was no need for action by the rest of Congress.
There were several notable exceptions to this general lack of commitment, however. Representative Jim Inhofe (R-OK) led the 103rd Congress's most successful crusade for reform: eliminating the secrecy of the names on House discharge petitions. Although Inhofe lacked relevant committee memberships, his willingness to fight within the House as well as outside of it (he spent hours discussing House rules on talk radio shows around the country) eventually forced a lopsided 384-40 vote in favor of full disclosure. This reform empowered rank-and-file Members, who -- if they constituted a majority -- could now force a vote on legislation despite a committee chairman's wish to block it. By providing a way to bypass committees, discharge reform spurred committee action. When Judiciary Committee Chairman Jack Brooks (D-TX) saw that 185 of the necessary 218 Members had signed the discharge petition for an aircraft liability reform bill (a bill he had blocked for eight years), he allowed the legislation through his committee. The measure received rapid approval and is now law. It had enjoyed broad support for nearly a decade, but the discharge petition had been the missing ingredient.
Representatives Robert Andrews (D-NJ) and Bill Zeliff (R-NH) introduced the "A to Z Spending Cuts Plan" that would trigger a special congressional session devoted to spending cuts. Over 200 Members signed the discharge petition for this measure; although the A to Z plan was not considered, strong support for the petition forced House leaders at least to advance weaker budget reform proposals (see next section).
Other reformers were successful in drawing public attention to abuses of congressional processes. Representatives David Dreier (R- CA) and Jennifer Dunn (R-WA) were particularly persistent in trying to secure House action (and then in publicizing House inaction) on recommendations of the Joint Committee. Representative Mike Crapo (R- ID) introduced "truth-in-voting" reforms that would make individual Members more accountable for the legislative votes they cast (see "Truth in Voting," below). In the Senate, Charles E. Grassley (R-IA) has repeatedly attempted to force Congress to apply to itself the same laws it passes for the rest of the country. He and Senator Joseph Lieberman (D-CT) currently are fighting for a Senate vote on a measure that would apply numerous laws to Congress, albeit under internal enforcement.
Despite the congressional leadership's furious resistance to reform and its ability to punish recalcitrant reformers, rank-and-file Members might have been more successful in promoting change had more of them been strongly committed to that goal. For the most part, that commitment was not apparent in the 103rd Congress.
NOTE: The failing grade does not apply to a few reform achievers like the Members mentioned above, who deserve special commendation for their efforts.
Budget Reform
House: C Senate: F
Congress's track record on managing the federal budget is not good. For too long, federal legislators have relied on disguised spending increases, votes to cut spending that actually save no money, and legislative gimmicks that circumvent Congress's own spending caps. Although the House of Representatives did pass a few tentative reforms, its efforts barely merit a passing grade, especially since its votes were taken so late that it is nearly certain the Senate will not pass companion measures.
The House took one healthy step, however: it passed legislation that, if approved by the Senate, would stop hidden automatic annual spending increases. These yearly "baseline" increases are calculated by government economists, who estimate how much the federal government will need next year to do everything it did the previous year, adjusting for economic and demographic changes. "Baseline budgeting" permits spending to grow at a remarkable rate; the Medicare baseline, for example, typically increases over 12 percent annually. (See James K. Glassman, "A Bit of Creative Accounting Makes the Budget a Fraud," The Washington Post, July 30, 1993, p. B1.) When legislators announce spending cuts, they use these inflated baseline figures, making it possible for Congressmen to claim credit for cutting spending while simultaneously engineering large spending increases. Eliminating this fraudulent practice has long been a goal of Representative Chris Cox (R-CA), who made replacement of baseline budgeting the centerpiece of his Budget Process Reform Act. This summer, the House passed H.R. 4604, the Full Budget Disclosure Act sponsored by Representative John Spratt (D-SC), which would base budgets on the previous year's actual spending and force legislators to justify spending increases rather than claim credit for phony spending cuts.
The House also passed another useful budget reform this Congress: a measure to place tighter controls on emergency spending. Because funding for emergencies is not subject to limits which apply to regular appropriations, well-placed legislators habitually add pork- barrel items to emergency appropriations. For instance, the $6.2 billion requested by President Clinton last year for California earthquake relief was transformed into $11 billion by the time Congress finished adding such obviously non-disaster items as funding for a New York train station and pay raises for federal employees. The House-passed Emergency Spending Control Act, if passed by the Senate, would make such budgetary sleight of hand a thing of the past by requiring that non-emergency spending in an emergency bill comply with overall spending caps.
Unfortunately, deceptive voting remains common. Two notable reform procedures were blocked by House leaders despite broad public and congressional support. The first was designed to solve the problem of phony spending cuts. Although Members of Congress routinely trumpet the amounts they cut from appropriations bills, these funds are not used to reduce the deficit. Instead, they are recycled by appropriations subcommittees into other programs. Over $1.3 billion in cuts was diverted in this fashion during 1992 alone. The Deficit Reduction Lock Box Act, H.R. 4057, introduced by Representatives Mike Crapo (R-ID) and Charles E. Schumer (D-NY), would earmark individual appropriations cuts for deficit reduction instead of allowing them to be recycled into further spending. The Lock Box Act, one portion of Representative Crapo's program of truth- in-voting reforms, currently has 151 cosponsors.
The A to Z Spending Cuts plan, cosponsored by Representatives Robert Andrews (D-NJ) and Bill Zeliff (R-NH), would provide for a special session for votes on whether to defund a wide array of spending programs; successful spending cuts would be directed to deficit reduction. The plan, which has 230 sponsors, nearly achieved passage but fell 14 signatures short of the 218 needed for a vote on the House floor. It was blocked by massive resistance from congressional barons who oppose any limits on Congress's spending power, but the vigorous efforts of A to Z proponents forced the leadership to allow consideration of the mild budget reforms discussed above. As Representative Gerald Solomon (R-NY) characterized it, "Instead of A-to-Z real spending reforms, we are going to have C-Y-A process reforms."
While useful, internal procedural reforms such as A to Z and the Lock Box are less effective than constitutional reforms to limit Congress's spending power. A balanced budget amendment to the Constitution and a line-item veto that would permit the President to strike wasteful federal spending from legislation provide the best prospects for ridding the federal budget of its pro-spending bias. (Republican House candidates will pledge on September 27 to support votes on these two constitutional reforms, as well as other reform issues, if they elect the leadership of the House in the 104th Congress.)
The Senate debated a balanced budget amendment but narrowly failed to muster the two-thirds majority needed for passage. In the House, even though 337 Members (far more than two-thirds) voted in favor of some version of a balanced budget amendment, procedural tricks used by the leadership ensured that no one version would receive enough support to go forward. The House did pass a weakened version of a line-item veto (the Enhanced Rescission Act) that would permit the President to propose spending cuts, but those cuts could be blocked by a majority in either the House or the Senate. (A genuine line-item veto would require two-thirds of both houses to override presidential cuts.) Senate Appropriations Committee Chairman Robert C. Byrd (D-WV), however, killed the measure in the Senate. Some action on budget reform will be necessary for the Senate to receive a passing grade.
Congressional Coverage
House: B Senate: F
Congress refuses to obey many of the laws it imposes on ordinary Americans. Nearly a score of federal laws -- including the Civil Rights Act, Americans With Disabilities Act, and Family and Medical Leave Act -- either do not cover Congress at all or apply to Congress differently than to the rest of the country. Congress's habit of exempting itself from laws that burden citizens, businesses, and state and local governments is fundamentally undemocratic and makes legislators careless about the regulatory and financial costs of legislation. Unlike private sector employees, congressional employees who allege wrongdoing by their employers face a slow, secretive, internal congressional process fraught with possibilities for political interference. Appeal rights are insufficient and jury trials nearly impossible.
Popular outrage at this double standard led to various legislative proposals purporting to solve this problem. The most popular, the Congressional Accountability Act, was sponsored by Representatives Christopher Shays (R-CT) and Dick Swett (D-NH), eventually garnering 250 cosponsors. When the Joint Committee on the Organization of Congress split into House and Senate groups, House members incorporated a watered-down version of the Shays-Swett legislation in the reform bill they produced. Senate leaders appointed a Bipartisan Task Force on Congressional Coverage which -- instead of designing legislation -- issued a report advocating half- measures. Nine months later, that report still has not been publicly released.
In August of 1994, the House passed a somewhat improved version of the Congressional Accountability Act. The Act gives aggrieved congressional employees a choice between Congress's internal hearing system (with an eventual right of appeal to federal appellate court) or a lawsuit in federal district court with the possibility of a jury trial. It also incorporates ten specified employment-related laws and permits addition of other employment statutes.
Although the Congressional Accountability Act is an important step forward, significant weaknesses remain. Under the Act, a newly created Office of Compliance would propose unique regulations for Congress "that specify the manner in which the laws... shall apply." (H. R. 4822, section 5 (c) (1) (A).) This means that Congress still will not be following the same laws as the rest of the country. Congress will write its own regulations, different from those faced by the private sector, and it will judge for itself whether those regulations are sufficient, even as the private sector continues to face often hostile enforcement of regulations over which it has little control. Furthermore, the Freedom of Information Act (FOIA) was stripped from the bill when it was considered in the House Administration Committee. As Representative John Boehner (R-OH) has contended, the House Bank and Post Office scandals might have been headed off if FOIA had been applied to Congress. Applying FOIA to Congress also could expose such other abuses of power as use of the congressional frank to influence elections and improper special- interest communications from Members to federal agencies. Finally, the Congressional Accountability Act's application of the Occupational Safety and Health Act (OSHA) to Congress lacks fines and allows Congress to delay any necessary repairs for a year or more after a violation is discovered. Private businesses ordinarily are not granted years to cure a violation of federal health and safety law. Unfortunately, Senate agreement to the Congressional Accountability Act appears unlikely. The principal Senate objection is that the new compliance office would have authority over both the House and Senate; many Senators prefer separate House and Senate offices. Even if the Act should become law, however, its cozy enforcement regime and coverage loopholes leave much room for improvement. Nonetheless, recognition that Congress must obey the laws it imposes on other Americans makes the Congressional Accountability Act one of the most important reforms to achieve any success in the 103rd Congress. Although the Act is flawed, its enactment would be a significant step forward -- especially in establishing the principle that Congress is not above the law.
Pay, Perks, and Staff
House: F Senate: F
Congress has become an "incumbent protection society" (The term is Alan Ehrenhalt's; see The United States of Ambition (New York: Random House, 1991), p. 230.) by using taxpayer-supplied public funds for private political purposes. Weekend trips back to the district are funded by one official account, staff who routinely perform campaign-style work (for example, drumming up media coverage) by another. Television and radio studios in congressional office buildings are funded by taxpayers and used by officeholders to compose and broadcast programs aired in their districts. Perhaps most important, the congressional frank -- "free mail" sent to constituents -- is worth roughly $160,000 per year for each Member of Congress, an amount greater than the average House challenger's entire campaign budget.
Congress works hard to protect its perquisites, including Members' salaries -- which now exceed $133,000 a year. "Ethics reform" legislation passed in 1989, for instance, provides for yearly cost of living adjustments (COLAs) in congressional pay, which means that each Member of Congress receives an annual pay raise without ever having to vote on the question. Congress's pension system is one of the most expansive in the country, roughly twice as generous as any in a Fortune 500 corporation. Legislation to repeal the COLA or otherwise reform congressional pay and benefits languishes with little support. Representative John Boehner (R-OH) has brought suit against the COLA procedure, arguing that it violates the 27th Amendment's stricture against congressional pay raises without an intervening election; so far, his efforts have been unsuccessful. For the most part, other congressional "perks" remained untouched this session as well.
As of mid-September, Representative Jim Lightfoot (R-IA) was attempting to force a vote eliminating the COLA scheduled for December 1994. Lightfoot's commendable effort would fix the problem for one year only, however, since his amendment would be attached to an appropriation measure.
The number of congressional employees -- long a subject of public ire -- did see some small improvement. Congress employs an army of aides, now numbering over 27,000, (Norman Ornstein, Thomas Mann, and Michael Malbin, eds. ,Vital Statistics on Congress 1993-1994 (Washington, D.C.: Congressional Quarterly, 1993), table 5-1, p. 127. Hereafter referred to as VSOC.) and its staff is by far the largest of any legislature in the world. (VSOC, p. 121.) In the last thirty years, operating costs have ballooned by 800 percent. (VSOC, p. 124.) With critics arguing that huge congressional staffs lead to inefficient and intrusive government, the House of Representatives has promised to reduce its staff by 4 percent. Its first round of staff cuts, however, relied heavily on eliminating peripheral positions, such as interns and administrative staff (for example, those who distribute office furniture and supplies). In an especially cynical move, Representative Charlie Rose (D-NC), Chairman of the House Administration Committee, transferred control over congressional food services employees to private contractors while ensuring that the services and employees would remain -- leaving the same number of employees on Capitol Hill, but reducing the official payroll. While non-legislative staff shouldered the vast majority of cosmetic reductions, highly paid personal and committee aides who function as shadow Congressmen escaped nearly unscathed.
The enormous subsidies for congressional mail, which increase the federal budget and tilt federal elections in favor of incumbents, also remained essentially unchanged. Lawmakers should answer constituent queries, but over nine-tenths of franking costs derive from mass mailings initiated by Congressmen, not from responses to constituents. (Senator Pete Wilson, "The Congressional Frank: A Simple Case of Abuse," Heritage Lecture No. 221, September 29, 1989, p. 1.) Although previous Congresses have cut franking accounts and required disclosure of Members' total expenditures, such reforms as limiting the mention of the sender's name to eight per page and capping his pictures at two per page only raise questions about what prior abuses had occurred. Republicans have pressed repeatedly for further reform of franking, but Rose has refused to hold any committee meetings on the subject this election year. The political uses of the frank were illustrated during the tumultuous 1992 elections, when three of the four heaviest House users of the frank lost their reelection bids. On average, the four sent out over a million mass-mailed letters apiece. ("Use of Franking Privilege," The Washington Post, October 22, 1992, p. A29.) Although these mailings failed to save them, they demonstrate that those in greatest political peril often use the frank the most.
One change symbolizes the whole of congressional reform this session. Congress has come under fire for reserving select parking for Members at Washington airports. Shortly after a Senate vote narrowly rejecting a proposal to eliminate the special parking arrangement, signs acknowledging that the spaces were reserved for Congressmen were mysteriously altered to read "Restricted Parking: Authorized Users Only." Although one can argue that Members need special airport parking spaces because of frequent travel, cosmetic changes that attempt to divert attention from Congressmen's special status without changing the situation are especially cynical.
The solution to these problems is as easy to understand intellectually as it is difficult to implement politically: further regulate or eliminate congressional "perks" susceptible to electoral abuse. If Congressmen want a pay raise, make them vote on it. If they need a broadcast studio to communicate with their districts, make them find one in the private sector. If they want to send what amounts to political mailings to voters in their districts, make them pay for it out of campaign funds; abolition of these unsolicited mailings by members of the House alone would help level the playing field for challengers and save taxpayers roughly $58 million every congressional session. (Estimate from National Taxpayer's Union news release, April 4, 1994.) A rule that Members of Congress could respond to, but not initiate, constituent correspondence would do more for campaign reform than any measure currently being debated in Congress. Finally, real cuts -- on the order of 25 percent -- from committee and personal staff are essential for congressional reform. (The House Republican pledge discussed in note 5 above also includes a commitment to reduce committee staff by a third.)
Campaign Finance Reform
House: F Senate: F