Chapter 10: Reclaim Congress’ Article One Powers
Throughout its tenure, the Committee maintained a consistent focus on the Article One powers given to Congress by the Founding Fathers. Created by the Framers as a co-equal branch of government, Congress’ specific constitutional powers allow Members to directly serve the American people. But over the past several decades, Congress’ standing as a co-equal branch of government has softened. The executive branch has expanded in size and scope of power. Ongoing cuts to the legislative branch have jeopardized Congress’ ability to effectively perform its policymaking, oversight, and representational responsibilities. Reductions in the legislative budget have resulted in staff cuts across congressional offices and support agencies, further weakening the institution. The executive branch has taken control of the purse strings, allocating funding for state and local projects and programs without congressional appropriations or approval. These dire circumstances led the Committee to examine why the executive branch has expanded while the legislative branch has not, and to find ways to build capacity and ensure that Congress can uphold its Article One obligations. As Committee Member Rep. Zoe Lofgren said during a January 14, 2020 hearing:
Image 10.1: Rep. Zoe Lofgren speaks during a Select Committee hearing.
"...over a period of decades that power has shifted from the legislative branch to the executive branch. And I think that is clearly the case. How we rebalance that is a challenge, not only in terms of the institutional capacity, which you have addressed, but also in a fight between the leg branch and the executive branch."
Rep. Zoe Lofgren, January 14, 2020
The Committee also considered the impact of increased political polarization and partisanship on the legislative branch’s ability to execute the Article One principle of debate and deliberation. While division is a natural and necessary part of the political process, when taken to extreme it hurts the institution and the people it’s designed to serve. As Committee Member Rob Woodall put it in an interview with the American Political Science Association, “Congress has become more interested in being Republican and Democrat than Article One and Article Two.” Recent historical changes in the procedures and politics of the House have contributed to this trend, leading the Committee to explore different approaches that foster a more deliberative process on the House floor and in committee.
Through a series of public hearings and committee meetings, Committee Members examined these factors and looked for ways to improve and strengthen Congress’s Article One responsibilities. The result is thirteen recommendations that aim to reclaim Congress’s Article One responsibilities. The package of recommendations improve capacity by facilitating bipartisanship and expertise in Congress. In particular, the Committee sought operational and procedural solutions to encourage a more thoughtful and deliberative process in committees. This section also addresses Congress’s power of the purse under Article One by introducing a new Community-Focused Grant Program. This program facilitates community and Member input in the appropriations process.
Since World War II, under presidents of both parties, the federal government has expanded in size and scope, leading to the rise of an administrative state that rivals the policymaking authority of Congress. The modern executive branch exercises extraordinary influence over the policymaking process via several factors, including: an increased federal workforce that heavily employs private contractors; bureaucratic rulemaking authority; and the expanded use of executive orders, presidential emergency powers, and policy czars. These tools allow modern presidents to act quickly in a crisis, and to lead when Congress is slowed by political or procedural gridlock. As Dr. Rachel Augustine Potter noted in testimony before the Committee:
“Among scholars, there is consensus that the executive branch has amassed considerable influence from its modest standing at our nation’s founding. Today, the executive branch is sophisticated, complex, and large. It is comprised of millions of people engaged in a diverse set of tasks.”
Dr. Rachel Augustine Potter, January 14, 2020
Modern presidents are also assisted by countless policy experts who serve in executive agencies across the federal government. The executive branch has added a dozen new agencies since 1789 when there were only three (State, Treasury, and War). While there is no official inventory of federal agencies, one recent count puts the current total at 278 distinct agencies in the executive branch. Most of these agencies were created via legislation passed by Congress, but others were created by the executive itself through a departmental order, executive order, or a reorganization plan. And once agencies are created, they rarely die (though their missions sometimes change).
Given the scope of what the federal government does, its size is not surprising. Federal agencies are responsible for everything from guaranteeing the safety of the food we eat to deep space exploration. And as society grows increasingly complex and advanced, government expands to accommodate new realms of regulation. This growth has unfortunately been coupled with a decrease in congressional expertise that ultimately leads to broad legislation and a deferral of rulemaking. Over time, this expansion has led to growth in administrative rulemaking, further extending and entrenching executive branch power.
Executive agency administrators do more than simply “faithfully execute” the laws passed by Congress. They exercise influence over the process by issuing regulations that have the force of law; formulating policy initiatives for Congress and the White House; interpreting statutes in ways that may expand their discretionary authority; and shaping policy by promoting their ideas to lawmakers and committees via the hearing process, the issuance of agency reports, and in meetings with congressional staff.
While Congress has used its “power of the purse” to increase federal discretionary spending over the past several decades, it has invested little in its own capacity since the 1990s. This hasn’t always been the case: legislative branch spending grew in the 1940s and early 1970s as Congress increased its staff, reorganized internal structures, and expanded and created new legislative support agencies.
Image 10.2: Chair Derek Kilmer speaks during a Select Committee hearing on Congress’ Article One responsibilities.
“Successful institutions – whether we’re talking businesses, organizations, or governments – depend on people who are invested in the work they’re doing. That’s fundamental. But successful institutions also invest in themselves. They invest in their employees, their infrastructure, and in the overall work environment and experience. They think and plan with an eye towards the future.”
Chair Derek Kilmer, January 14, 2020
By the early 1990s, however, the political winds had shifted, and many House candidates campaigned on a message of downsizing Congress and eliminating waste. Once elected, these Members kept their campaign pledges to slash legislative branch budgets and reduce staff. Doing so was viewed as “an easy way to signal fiscal conservative bona fides without having to take hard votes to cancel school lunch programs or slash entitlement benefits.”
The challenge, from a capacity-building perspective, is restoring funding once it’s been eliminated. Many Members are loath to vote in favor of increasing their own budgets—especially when they’ve pursued cuts in executive branch spending. As a result, legislative branch spending has remained stagnant since the early 1990s. The next section considers how these reductions over time have weakened congressional capacity, making it difficult for Congress to fulfill its Article One responsibilities.
Many Members fear the political consequences of voting to invest in Congress. At the same time, most recognize that the American people want a functional and productive institution. Constituents rightfully expect responsive representation; they want Members to answer their questions and fulfill their requests. But today, the average population of a congressional district is more than triple the average population of a 1910 congressional district. As the number of constituents Members represent continues to grow, and as the policy agenda expands and becomes increasingly complex, Members are challenged to do more with less.
“Demands upon Congress have grown immensely over the past century, and Congress has actually divested in its capacity over the past 40 years. In tandem, these divergent trendlines all but ensure that Congress will fall short of the expectations of legislators, staff and the public.”
Dr. Kevin Kosar, January 14, 2020
Broadly defined, congressional capacity refers to the broad range of factors that Congress needs to fulfill its Article One responsibilities. Congress was established as the first among co-equal branches of government and is expected to resolve public problems through legislating, budgeting, holding hearings, and conducting oversight. In performing these responsibilities, Members of Congress are also expected to represent the views of those who elect them to serve. Given the range of responsibilities assigned to the legislative branch, it’s useful to think of capacity as what Congress needs to successfully fulfill its constitutional obligations.
“Congress has managed to attract extremely talented and dedicated staff and committees like this one continue to be productive despite the many challenges this institution faces. Congress is fueled by people who believe strongly in the mission they’re either elected or hired to do. But fulfilling that mission has become harder over the past several decades, primarily due to decisions and choices Congress has made.”
Chair Derek Kilmer, January 14, 2020
As discussed throughout Chapter 3, congressional staff serve as the backbone of the institution, and retaining them with higher pay and better benefits will improve the institution. In addition to the staff in individual Member offices, nonpartisan support agencies help by providing invaluable research and expertise. The figure below shows the total congressional staff count by chamber, as well total staff employed by legislative support agencies like the Congressional Research Service and the Congressional Budget Office. Total staff between the two chambers peaked in 1991 and fell nearly 19 percent by 2015. Rather than mitigating reductions in congressional staff with increases in legislative support agency staff, Congress did just the opposite and cut these staff by 40 percent.
Figure 10.1: Decline of Congressional Staff Over Time
Source: Brookings Institution, Vital Statistics of Congress
In addition to the decline of support agencies, Figure 10.1 shows a decline in committee staff as well. House committee staff numbered 2,321 in 1991 and fell about 50 percent to 1,164 by 2015. Notably, House committee staffing levels fell dramatically in 1995, when the new Republican majority reorganized the committee structure, eliminating a number of standing committees and subcommittees. Figure 10.2 details the decline of House and Senate Committee staff.
Figure 10.2: House and Senate Committee Staff, 1981-2015
Source: Brookings Institution, Vital Statistics on Congress
Given the important role that committees play in the legislative process, the cumulative loss of committee staff is of particular concern. Policymaking and oversight are two core functions of the legislative branch and committees are central to these processes. Committee staff tend to have more experience and more policy and institutional expertise than personal staff; their departure and the resultant “brain drain” from the Hill leaves Members more dependent on outside experts like lobbyists—about 40 percent of whom are former congressional staff. As noted in Chapter 1, Figure 1.2, Lobbying expenditures today far outpace overall House and Senate expenditures. Ultimately, reduced committee capacity, combined with the expansion of lobbying, has sorely diminished Congress’ ability to carry out its Article One obligations.
As a co-equal branch of government, Congress is empowered by the Constitution to oversee the executive branch. Oversight is conducted by congressional committees for the purpose of ensuring that federal money is spent, and federal programs are implemented, in accordance with Congress’ directives. But cuts to committee budgets and staff have made it more challenging to perform ongoing and comprehensive oversight. Recognizing the importance of overseeing the federal budgets and programs Congress determines, as well the constraints many committees currently face, the Committee sought ways to encourage more productive and bipartisan forms of oversight.
In testimony before the Committee, Elise Bean, a former Senate oversight staffer who is now with the Levin Center at Wayne State University, noted that the quality of congressional oversight has varied dramatically over time. She attributed these variances to a number of factors, including: inadequate technical expertise on committees; an absence of Congress-wide oversight standards and norms; restrictive committee rules; and, partisan polarization. Additionally, Members (and staff) are spread thin and have little time to absorb large amounts of highly complex material.
“Oversight … provides Members of Congress with an opportunity to explore and reach consensus on the facts related to a particular issue and develop a factual predicate that can lead to legislation or other appropriate congressional action. Moreover, when conducted with respect for different points of view and a commitment to the facts, oversight inquiries can actually strengthen relationships between Members of the two parties by helping them develop a mutual understanding of important issues.”
Elise Bean, January 14, 2020
As noted in the section above, committee staff tend to have more professional and policymaking experience than personal staff. Their expertise helps Members understand and navigate complicated policy and oversight issues. However, drastic cuts in committee staffing levels means that many committees are operating at sub-optimal levels. Expertise is limited, training is minimal, and turnover is high. And while all congressional hearings require a hefty amount of research and preparation, congressional investigations and oversight are particularly challenging because of the detailed documentation required. Reduced staff capacity means that investigations and oversight today are often restricted to what’s possible rather than what’s ideal. The Committee’s recommendations for building staff capacity are addressed in Chapter 3.
While diminished staffing levels impact the level and depth of oversight and investigative hearings, procedural and operational factors can affect the form these hearings take. In the House, the majority party sets the rules by which the chamber operates and controls the chairmanships of House committees. With the exception of this Committee and the House Committee on Ethics, where membership is split evenly between the parties, House committees are weighted heavily in favor of the majority party. The majority holds more committee seats and maintains control over approximately two-thirds of the committee’s budget and staff. These structural factors allow the majority party to exercise greater control over committee output.
In addition to the various structural factors that favor the majority, committees maintain procedural rules that can affect the quality of hearings. Topics for public hearings are determined by the majority and depend on the committee chair. The majority also gets more witnesses than the minority, which allows them to set the hearing’s tone. A bigger budget and staff also advantages the majority when it comes to hearing preparation.
Committee chairs control hearings and, while they typically abide by committee rules, they can waive the rules. While House committees vary in terms of their norms and procedures, some rules are fairly standard across committees. For example, many committees have a five-minute rule when it comes to witness statements and Member questioning of witnesses. Such limits, however, can make it difficult for Members to obtain meaningful information; they also sometimes encourage Members to make statements about the topic at hand rather than ask questions.
While a committee system that favors the majority reflects the House’s institutional structure, it also increasingly reflects the level of political polarization. Chapter 2 described how Congress has become more polarized over the past several decades. This trend affects the tone of committee discourse, particularly when hearing topics and witnesses are highly partisan. Rather than encourage a meaningful examination of the facts, politicized hearings tend to be unproductive, leaving Members and staff—as well as the viewing public—frustrated with the process and outcome.
“There are certainly hearings where this (tried-and-true) format works reasonably well. But as a forum for hearing expert testimony, doing serious oversight, examining how a law is being treated or administered, examining a major national or regional problem, it has become an anachronism. Hearings far too often are disjointed, with lines of questioning intermittent, interrupted, combative and confusing. Members doing their five-minute rounds are islands unto themselves. Witnesses facing tough questions know they can filibuster for three or four of the five minutes, and then often get a five-minute breather as a more sympathetic questioner does a monologue or throws softballs. There are better ways to do the public’s business.”
Dr. Norman Ornstein, February 5, 2020
Committee Members recognized that political polarization at the committee level sometimes spills over to the House floor. Partisan debates in committee become partisan debates on the floor, with Members more focused on scoring political points than engaging in thoughtful exchanges with their colleagues across the aisle. This approach undermines Congress’ ability to successfully execute the Article One principle of debate and deliberation.
“The Framers intended for Congress to be a deliberative body. They wanted a system where representatives of a diverse population would come together and engage in extended periods of debate and deliberation. Through this process, they would learn different viewpoints and eventually reach consensus. Those who lost out would at least be satisfied that their voices were heard and be more inclined to accept outcomes as legitimate.
Compromise necessitates trade-offs which means that no one is going to be 100-percent happy with the final product. But losing out on policy goals is tempered by at least having a say in the process. I know that may seem of little consequence, especially when the policies we’re battling over matter deeply to our constituents. But the ability to articulate an argument, counter an opposing position, and engage in a thoughtful exchange of ideas matters.”
Chair Derek Kilmer, February 5, 2020
Divisions are inherent in our political system but when taken to extremes, they can weaken Congress’ ability to find compromise solutions. And when Congress is unable to resolve the policy challenges of the day, the American people lose faith in the institution.
The challenge for Members is to find ways to convey the often-passionate views of their constituents without further enflaming political divisiveness. In testimony before the Committee, Dr. James Curry suggested that House procedures can help foster debate when they:
- minimize opportunities for obstructionist tactics;
- enable legislators and key negotiators to speak openly and freely;
- reduce incentives for legislators to play to the cameras, intense constituencies, or special interests, and;
- avoid unnecessarily limiting the universe of policies and issues open to negotiators.
Some of the Committee’s recommendations discussed in other chapters are consistent with the goals set forth in this framework. For example, the Committee recommended creating a bipartisan Members-only space in the Capitol to encourage more collaboration across party lines. Behind-the-scenes deliberations enable legislators to have necessary and honest discussions that may not be possible in a public forum.
With the goal of supporting healthier discourse in committees and on the House floor, Committee Members focused on developing recommendations to strengthen committee capacity and encourage bipartisan productivity. As Woodrow Wilson famously claimed, “… it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work.” By strengthening the way committees work and by encouraging more thoughtful discourse behind the scenes and in public proceedings, these recommendations help Congress uphold its Article One obligations.
At a bipartisan Member retreat (as recommended by the Select Committee) committees should have at least two-thirds of their Members meet separately to determine the committee’s goals for the year, and to discuss how the Members will treat each other in public and in private, and how the committee will treat witnesses during hearings.
Increase capacity for policy staff, especially for Committees, policy support organizations (GAO, CBO, CRS) and a restored OTA, and perhaps restored capacity to member-supporting legislative service organizations, and updated technology resources. Additionally, House support organizations (GAO, CBO, CRS) should evaluate their mission, how they have evolved over time, and if there is a further need to modernize, and incorporate the results of this review in their budget justifications to the Legislative Branch Subcommittee on Appropriations and other relevant committees.
Reduce dysfunction in the annual budgeting process through the establishment of a congressionally-directed program that calls for transparency and accountability, and that supports meaningful and transformative investments in local communities across the United States. The program will harness the authority of Congress under Article One of the Constitution to appropriate federal dollars.
The CFGP recommended by the Committee outlines detailed requirements to ensure that congressionally-directed spending are communities’ priorities; and is transparent from beginning to end, a good use of taxpayer dollars, and fair. This framework, passed by the Committee on September 24, 2020 holds great potential for Congress. From a constitutional perspective, the CFGP is an important step to reclaiming Congress’ Article One responsibility and power of the purse. In addition, the CFGP will provide a much-needed refresh to the stagnant and inefficient authorization and appropriations process.
Perhaps more importantly, this program is an important step for the American people. The money allocated to support local communities belongs to them—and they should have full access to the application and selection process, from beginning to end. In addition to the transparency of the CFGP, this program allows constituents to hold their Representative accountable in the way the Founders intended.
Executive branch bureaucrats shouldn’t be alone in making decisions regarding spending in congressional districts. That responsibility belongs to the community leaders and Members that represent them. This program puts the decision-making into the hands of those who know districts best: the communities themselves and the Members elected to represent their interests in Congress.
Committee Members shared the broad goal of restoring Congress to its rightful place as a co-equal branch of government and focused on recommendations to help Congress uphold the responsibilities given by the Founding Fathers. By encouraging more thoughtful discourse and enabling a more productive committee process, these recommendations will help restores public trust in Congress and its Members.