Chapter 1: Make Congress More Effective, Efficient, and Transparent
There is a reason that Congress is often referred to as “The People’s Branch”. Compared to the Executive and Judiciary, the Legislative is the most representative branch in the U.S. Government—and the U.S. House is considered the “closest” to the American people. Members of the House, elected by Americans in each congressional district across the nation, represent the needs of their communities in Washington. The close connection between constituents and their Representative in Congress requires accessibility, communication, and transparency.
Over the past several decades, Congress has periodically implemented new practices to encourage transparency both within and outside the chamber. The House of Representatives allowed C-SPAN cameras to film floor proceedings beginning in the 1970s, lobbying is subjected to more intensive regulations, floor votes are now recorded electronically, and social media has made it easier for constituents to directly connect with their Representative. However, many of the tools used to monitor the development and passage of legislation remain unnecessarily cumbersome and outdated. For constituents and Members of Congress alike, it is still difficult to track legislative changes, monitor lobbyist involvement in the legislative process, and see how Members vote in committee.
In order to truly work on behalf of the American people, Congress must be accessible and transparent. When the Select Committee on the Modernization of Congress (henceforth referred to as “the Committee”) began crafting their first package of recommendations, improving transparency throughout the House was a top priority. Chair Derek Kilmer said in a May 10, 2019 hearing dedicated to transparency reforms:
“Providing public access to legislative data is a good idea. Ultimately, it is the people who pay for the data Congress collects, so they should be able to access basic information about what happens here, whether it is following a bill through the process or seeing how we vote in committee and on the floor or tracking what bills we sponsor and cosponsor. Transparency actually promotes accountability to our constituents, and that is a good thing.”
Chair Derek Kilmer, May 10, 2019
To identify the challenges around legislative transparency, the Committee turned to congressional experts, current and former lawmakers, and drew from their own experiences as Members of Congress. Ultimately, the Committee passed six recommendations to make Congress more effective, efficient, and transparent. These recommendations will not only make Members more transparent to the people they were elected to serve—but will make the legislative process within Congress more efficient and accessible for the American people.
Specifically, the Committee proposed streamlining the bill-writing process by implementing one, standardized system to draft legislation and track changes in order to save time and reduce mistakes. The Committee also recommended finalizing a new system to easily track how amendments change legislation, and the impact of proposed legislation to current law. To support committees and make it easier to follow complex reauthorizations, the Committee proposed creating a list of agencies and federal program, accessible with just the click of a mouse. The Committee also recommended new reforms to make it easier to see who is lobbying Congress and what they’re lobbying for, tracking the relationship between lobbyists, Members, and legislative outcomes, the Committee recommended a centralized source for all committee and subcommittee votes to make it easier for the public to see how their representative voted in committee during bill markups and other committee activity.
The Committee held several hearings specifically dedicated to transparency and accessibility in Congress, but other hearings throughout the Committee’s lifespan have also addressed the importance of these types of reforms. The recommendations discussed in this chapter were passed on May 23, 2019, December 19, 2019, and September 24, 2020. After passage by the Committee, the first five of these recommendations were incorporated into H. Res. 756, and successfully passed by the House Chamber, by a vote of 395-13, on March 10, 2020. Several of these reforms are already being implemented by the Clerk of the U. S. House or the House Administration Committee.
Perhaps just as important as the formal action taken by the Committee, the Committee also led by example. Chair Kilmer and Vice Chair Graves made transparency part of the Committee’s practice: hearing topics and witnesses were selected in a bipartisan manner, committee briefings and hearing preparation were done with the full committee staff, not by party line, the Committee’s website was ADA-accessible, and transcripts and hearing materials were promptly shared with the public. The Chair and Vice Chair regularly met with bipartisan groups of colleagues and with reform-oriented organizations to share the Committee’s progress and plans. The Committee’s dedication to transparency was reflected through thoughtful, purposeful actions that could easily be adopted by other committees.
This chapter details the efforts and Committee recommendations to make the House of Representatives more transparent, efficient, and accessible. The chapter begins by describing past reform efforts—lessons that the Committee built upon. It then details the motivation, expertise, and background that led the Committee to adapt these recommendations. Finally, this chapter concludes by considering ways to combat the repercussions of past transparency reforms—namely a decline in confidential and substantial policy negotiations between Members, and an increase in congressional partisanship in public.
Article I, Section 5 of the U. S. Constitution explicitly states:
“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts as may in their Judgment require Secrecy.”
Today that directive takes the form of the daily digest of the Congressional Record, which includes transcripts, votes, and legislative text. Likewise, since the start of Congress, the House visitor’s gallery allows the public to observe chamber proceedings. While there have been periods of limited public accessibility, this tradition of openness remains.
This foundation, as well as the very notion of democratic representation, has created a natural inclination to keep Congress open and accessible. Yet as constituencies have grown, and technology has developed, Congress has grappled with tensions between transparency and confidentiality. While Congress is more accessible than ever before, legislating still requires opportunities to negotiate outside the glare of camera lights. National security concerns should be conveyed to the public, yet also granted private, confidential committee hearings. Lobbying, often viewed as a boogeyman, plays an essential role for the American people and organizations by representing their goals throughout the legislative process.
The Committee took this tension into consideration. Former Members and congressional experts testified on the importance of considering transparency reforms that would still grant Members of Congress necessary confidentiality for good faith negotiations. While “sunlight is the best disinfectant,” it can also blind people to the realities of negotiation. On May 10, 2019, the Committee held a hearing titled, “Opening up the Process: Recommendations for Making Legislative Information More Transparent”. Dr. Frances Lee reflected on some of the unintended consequences of past transparency reforms:
“As we open up committees, what that opens Congress up to is more pressure from organized interests, because they are the ones with the strongest incentives to pay attention… as we try to reach out and make the system more representative and more accountable, we wind up making it less representative and accountable to organized groups as opposed to that broad public… Congress is the people's House. But Congress needs to protect its ability to do that, do the work of the institution.”
Dr. Frances Lee, May 10, 2019
The Committee took these lessons into consideration. Past reforms have sought accessibility and transparency, while still making it possible to legislate effectively—and some have been more successful than others. Congressional reforms have addressed transparency largely through procedural changes, document accessibility, and lobbying regulations. In addition, external changes like television and social media have introduced new forms of congressional transparency.
The first of the procedural reforms in the modern congressional era were included in the 1970s Legislative Reorganization Act (LRA)—arguably the largest legislative transparency reform effort in the history of Congress. At the time of passage it was considered “a major shift in the House’s sense of itself,” and “by the time an innocuous legislative reorganization bill reached the floor… it was apparent to Congressmen of every shade of opinion that secret voting on major amendments had become indefensible.”
The legislation, originally developed by the 1965 Joint Committee on the Organization of Congress, utilized procedural changes to encourage transparency among Members. In the House, roll call votes on the floor were limited to 15 minutes (as they are today), electronic voting was initiated, and Members could request recorded votes on amendments. Committee hearings were required to be public, with exceptions made for issues of national security. Roll call voting in committees was also required to be made public. These reforms, still in place today, undoubtedly made it easier for the public to follow their Representative’s actions in Congress.
More recently, Congress passed the FOIA Improvement Act of 2016 to update the Freedom of Information Act (FOIA) that passed Congress in 1967. FOIA allows the public and Members of Congress to request information from federal agencies—an important resource for oversight. Other procedural reforms, such as those governing congressionally directed spending, have come and gone.
While records of committee and subcommittee votes are still not in a public, centralized location, important reforms have made committee proceedings more accessible. The Rules package of the 112th Congress ushered in greater transparency in committees by requiring text of “a measure or matter being marked up” to be publicly available for 24 hours prior to a meeting or hearing. It also built upon the 1970 committee vote reforms by adding a deadline: recorded votes needed to be public within 48 hours, and accessible electronically.
Recent reforms have focused on making data and legislative documents more accessible and understandable to the American public. Despite—or perhaps because of—the size and scope of Congress, and the vast output of legislation, letters, and other documentation, public accessibility is cumbersome and complicated. Legislative documents should not only be accessible for the American Public, but easy to understand.
While government data is public, it is not easily accessible for the average person. Without availability of free public information, private organizations have filled the gap. In 2005, GovTrack.us began the process of compiling information on legislation—including bill sponsors, bill text, and vote outcomes—for public consumption in a downloadable format. Over time, Congress found that third-party websites like GovTrack.us, the Sunshine Foundation, and OpenCongress.org, were being used much more frequently than Congress’ own resources.
In an effort to increase congressional bulk data accessibility, the House established the Bulk Data Task Force in the 112th Congress. This Task Force, funded through the Legislative Appropriations Act of 2013, was instructed to examine the accessibility of bulk data for constituents and member offices. The Bulk Data Task Force has continued to meet, through the 116th Congress, and connects data scientists and private and public organizations with Members of Congress to discuss how to better use and share congressional bulk data. The Committee recommends making this task force permanent, and renaming it “the Congressional Data Task Force.” This recommendation, and how the task force pertains to technology in Congress, is discussed in greater depth in Chapter 6.
From a transparency standpoint, having accessible, downloadable data makes understanding and following legislative development more accessible, and Congress has continued to develop and improve these resources. The House Clerk has developed a “technology timeline” to improve transparency. For example, Congress.gov was recently updated in 2018 to include Congressional Research Service (CRS) reports and committee data; the House Bulk Data Task Force and Government Publishing Office (GPO) are uploading bills and public laws in XML format, making it easier to analyze and observe legal changes; and an ongoing Legislative Information Management System (LIMS) is being updated to include floor activity, committee information, and congressional communication on one platform.
In addition, following a 1999 feasibility study, the Committee on House Administration adopted XML as a data standard for the exchange of legislative documents. Since 2013, the Bulk Data Task Force has led the conversion of legislative documents into United States Legislative Markup (USLM) format beginning with the U.S. code. In 2016, the Bulk Data force worked to convert enrolled bills, public laws, and the Statues at Large into USLM format.
But even with these impressive reforms, accessing congressional data is still cumbersome. The lack of a centralized area for all federal documents in data form makes it difficult to see how legislation is changing as it is amended. For Members and staff, this complicates the bill-writing process, making it time-consuming and prone to mistakes. And for constituents, this makes it difficult to track how amendments impact legislation and ultimately public law.
Lobbying was largely unregulated until after World War II when lobbyists had to officially register with the federal government under the 1946 Lobbyist Disclosure Act. But as the bureaucracy grew, the role of lobbyists did as well. By the 1990s, the 1946 Act was painfully outdated. Congress passed the Lobbying Disclosure Act in 1995, requiring that individuals register as lobbyists if they spent at least 20 percent of their time on an individual client. But this legislation, too, was soon susceptible to loopholes.
Following the 2005 Jack Abramoff scandal in which several Members of Congress resigned after being convicted of bribery, Congress was motivated—and pressured—to reform the relationship between K Street and Capitol Hill. In 2007, the Senate passed the Honest Leadership and Open Government Act. In a show of the bipartisan effort behind the legislation, the bill was introduced jointly by the Senate Majority and Minority Leaders (Sen. Harry Reid (NV) and Sen. Mitch McConnell (KY), respectively) at the start of the 110th Congress.
These reforms included a required waiting period before former Members of Congress could register as a lobbyist following their retirement, and a ban on member travel funded by special interests. But the legislation has done little to temper the growth of lobbying firms and their relationship with Congress—some critics even say it has made lobbying more pervasive and hidden.
Lobbying reforms have repeatedly been introduced as legislation —but passing comprehensive reform remains difficult. Yet it’s undoubtedly essential for purposes of transparency that lobbying disclosures be not only honest, but publicly accessible.
The last arena of congressional transparency reforms—in technology and media—has been implemented by natural force. Most obvious to today’s observers of Congress is the continuous presence of television cameras. On March 19, 1979, C-SPAN broadcasted the first television feed from the floor of the House of Representatives. The Senate followed suit in 1986. Today, C-SPAN captures all live proceedings from the House and Senate floors, as well as many committee hearings.
Likewise, the Capitol Hill Press Corps has grown tremendously with the advent of technology. More than 1,500 correspondents from print, digital, radio, and television news media on Capitol Hill cover Congress every day. But as the presence of regional correspondents have declined, media attention has increasingly turned to the “horse race” of politics—the negotiating and party politics that drive lawmaking—rather than the policies themselves. In addition to their on-the-ground reporting, social media has provided reporters, as well as Members of Congress and their staff, a chance to quickly communicate legislative updates—making it easier for the public to follow along with Members’ every move.
On a positive note, these tremendous changes in technology have also made it easier for Members of Congress to communicate with their constituents. Today, every member of Congress has his or her own website and Facebook page, and nearly every member has a Twitter page or Instagram. Constituent correspondence is largely handled through email, and technologies like Tele-town Halls have made it possible for Members of Congress to virtually meet with constituents around the country from the comfort of a D.C. office. Still, congressional communications methods have not kept pace with the private sector. Reforms should consider how to make constituent communications not only easier, but more effective. Chapter 8 discusses additional recommendations in this space.
But while this tremendous shift in media presence—particularly television cameras and social media—has opened congressional proceedings to the public, these public conversations have not necessarily translated to private ones. It has become easier for Members to use cameras to postulate or tweet their criticism at each other, rather than negotiate in-person. Ensuring opportunities for Members of Congress to negotiate and work confidentially, while still being transparent and accessible to the American people is a balance transparency reforms should seek.
Over the past few decades, Congress has worked to improve transparency, and the Committee built upon the lessons of past reform efforts. The following recommendations are intended to improve transparency and ease public access to legislative information in the U. S. House of Representatives.
Recommendations to Improve Transparency and Accessibility
Bill writing is, by its very nature, complex. There are multiple stages to developing legislation, and often multiple actors involved. In the 115th Congress, 68 percent of legislation had bipartisan cosponsors—that’s thousands of bills being developed between two or more offices, at times involving upwards of 200 offices. In addition to cosponsors, the legislative process must incorporate input from congressional committees of jurisdiction, the Rules Committee, and the House Floor. Party and committee leadership can also impact the legislation, often with the intention to ease passage on the House floor.
These complexities are exacerbated by the technological limitations of creating legislation. There are inconsistencies in formatting between offices, it can be difficult to track changes in different versions of legislation and fully understand how legislative proposals will impact current law. The Committee set out to address these seemingly minor, but ultimately impactful hindrances to legislative transparency. As Vice-Chair Tom Graves said in the May 10, 2019 hearing dedicated to transparency:
“Now, a lot of transparency is focused on what Members of Congress are up to, and that is certainly an important piece of what we are going to be talking about today, but we should also explore how transparency can truly improve how we do business and execute our responsibilities.”
Vice Chair Tom Graves, May 10, 2019
Fortunately, the past decade of transparency reforms targeting document accessibility have built an infrastructure adaptable to change. The Bulk Data Task Force, established in 2012, has worked to standardize bulk files of legislative data. Rather than reinvent the wheel, the Committee sought ways to best utilize the existing success of the Bulk Data Task Force, ultimately proposing two solutions.
Conclusion and Additional Considerations of Transparency Reform
Transparency is key to a working democracy. Citizens need information to hold their representatives accountable, communicate their policy preferences, and understand the legislative process. Members and congressional staff need transparency to make well-informed decisions and legislate on behalf of the American people. But we would be remiss to not mention potential consequences of increased transparency. As past reforms have shown us, in some cases the solution intensifies the problem.
The Committee invited Dr. Frances Lee to the May 10 hearing on transparency to shed light on the unanticipated consequences of transparency. Dr. Lee highlighted two areas for concern in the pursuit of uninhibited transparency: a lack of opportunity for necessary deliberation, and increased incentives for partisanship. As she testified to the Committee:
“Members need to be able to talk frankly with one another so that they can search for common ground, explore possible solutions, and build trust with one another… Transparency makes it easier for organized groups, for lobbyists to monitor and pressure Congress. This was not reformers' goal, but transparency's effect is often precisely contrary to its intended purpose.
“A second effect of transparency is that it turns congressional deliberation outward towards messaging. Deliberating in public encourages Members to direct their attention towards external constituencies and audiences rather than to engage with other Members… Transparency encourages Members to use the legislative process to score political points against their opponents in front of broader audiences. In committee and on the floor, Members continually propose amendments, not in an effort to improve legislation, but instead to put their opponents on the wrong side of public opinion. “
Dr. Frances Lee, May 10, 2019
Similarly, in a February 2020 hearing, Dr. James Curry offered an example of repercussions of the 1970 transparency reform. Amendment votes on the House floor have been increasingly used as political messaging to express an ideological, but ultimately unpassable, legislative position. Curry suggested taking into consideration the potential for such highly visible votes to further increase partisanship in Congress.
Other witnesses, including former Members of Congress, echoed concerns of increased transparency and encouraged the Committee to consider reforms that could counteract the potentially adverse byproducts of increased transparency. The Committee addressed these concerns in a two-fold approach:
First, as outlined in this chapter, the reforms recommended by the Committee are targeted and specific. They offer practical updates to make Congress not only more transparent, but efficient and accessible: streamlining the bill writing process by using a standardized, electronic format paves the way to other reforms, including an easier editing and adoption process. These reforms to document accessibility make it easier to create legislation, limiting error and encouraging efficiency. They also make it easier for the American public to follow how the legislation and amendments will affect existing law.
Likewise, streamlining the lobbying disclosure and registration process will make it easier for citizens to know who is lobbying Congress, and who is involved in the legislative process. And developing a centralized, accessible website for federal authorization deadlines, as well as committee and subcommittee votes, will help Congress fulfill its Article One responsibility and even the playing field for constituents keeping tabs on congressional activity. Lastly, requiring transparency at the ECMO level ensures that all stages of the policymaking process are open to the American people.
The second way the Committee worked to avoid the errors of past transparency reforms was to pair these transparency recommendations with reforms that facilitate bipartisanship and civility. The common critique of transparency reforms is that the increased spotlight ultimately encourages Members to postulate to the attentive public. However, by pairing these targeted transparency reforms with reforms that facilitate bipartisanship, committee compromise, and substantial deliberation, the Moderation Committee strove to avoid the mistakes of past reforms. These civility reforms are the subject of our next chapter.
Future committees should consider this careful balance of transparency and facility, particularly when considering large procedural changes such as an open rules process or unlimited debate on the House floor. While these issues were oft debated in the Committee, our final recommendations reflect thoughtful consideration of the tension between productivity, transparency, and the realities of legislating in a body with 435 individual lawmakers. Ultimately the recommendations in this chapter make important changes that will make Congress more transparent, efficient, and accessible for the American public, as well as for all Members of Congress.