Institutional Reform Proposals for the 105th Congress

Thank you for inviting me to testify before your committee this morning to discuss institutional reform proposals for the 105th Congress. I am pleased to see the OSR confronting some very difficult institutional issues about how legislation should be crafted in the House and about how to reduce the bitter partisanship that seems to be on the rise. As I understand it, we’ve been given two challenges this morning: to suggest ways of both improving public perceptions of Congress and making Congress work better. I want to make two quick observations about these challenges and then move on to some specific recommendations for the OSR to consider.

1. Unusual political times demand unusual institutional solutions.

I think it’s important to recognize that today members of Congress are working in an unusual political environment—an environment that more often than not gives members every incentive not to reach agreement. There seem to be steady partisan and ideological pressures on members not to compromise on firmly held positions. Why is this?

First, you face an increasingly polarized political environment—one in which the decline of the political center has left the parties extremely far apart ideologically. By my count, political centrists today make up around ten percent of each chamber, having declined from over a third of each chamber in the late 1970s. The size of the political center is at its lowest point for the last thirty plus years. In a political system that demands compromise to bring about change, the center is vital to the moderate, bipartisan policy making preferred by the American public. Absent a political center, increased partisanship and ideological polarization are inevitable—and sure to feed public distrust and distaste for politicians and the political process.

Second, you face the challenge of legislating in a remarkably public environment—democracy some say has been replaced by hyperdemocracy. You face an intensely negative media, an explosion in the number and variety of interest groups competing for influence, and a revolution in communications technology that gives you little time or space for methodical deliberation.

Third, you must grapple with an agenda that requires imposing losses rather than distributing benefits. In other words, these are not typical political times, and I think that justifies the House moving to consider some not so typical remedies. Old solutions don’t seem to be working, not least because the agenda is so difficult and the political environment so polarized.

2. Not everything that improves public perceptions of Congress will necessarily make it work better.

I think you will find it very difficult to find solutions that simultaneously improve public perceptions of Congress and make Congress work better. After all, there are steps you can take that would probably improve public approval of Congress, but wouldn’t help you to do your jobs any better. Congressional term limits, banning contributions from political action committees, further cuts in congressional perks and staff—these types of reforms fall in this category. They would meet public demands that members of Congress be less insulated and less beholden to organized interests, but probably wouldn’t do anything to help bridge differences in Congress and thus to produce better policy outcomes.

Similarly, there are steps you could take to make Congress work better, but that probably wouldn’t help boost the public’s impression of Congress. Relaxing sunshine requirements and reducing the amount of television coverage might very well help members to reach agreement without the scrutiny of the press and lobbyists. But such reforms would likely just further raise the ire of constituents who think members of Congress are already too insulated from the public and its concerns.

Having said that, I think most of us would agree that if Congress did in fact work better—by this I mean forging compromise in a manner that the public thinks is both efficient and equitable—public perceptions of Congress would improve. So, the challenge is to come up with new ways of circumventing gridlock—devising means of getting around obstacles to compromise. In this spirit, I’d like to make a set of recommendations today—each intended to make it easier for opposing sides to resolve conflicting interests and secure compromise.

3. “Facilitated Consensus”—Mediators and Committee Deliberation

I think the House would be well-served by experimenting with some new methods of reaching agreement in committee. I think if members of committees were given the time and chance to develop reasonable compromises at the committee level, there would be fewer challenges from the leadership, the Rules Committee, and non-committee members before bills reach the floor and during floor consideration itself. One way to foster such constructive discussion at the committee level would be to try what is known as “facilitated consensus” methods. This is an increasingly popular innovation at the state level, where seventeen states have so far established offices to promote the use of conflict mediation in government. Indeed, as one North Dakota state senator noted about his legislature’s experience with the use of mediators, “A consensus approach provides a great substitute for gridlock.” I think it would be worth at least on an experimental basis the introduction of mediators into committee deliberations.

This method of conflict resolution uses a neutral mediator to help legislators build agreements. The inclusion of a neutral mediator is intended to get opposing sides to talk to each other constructively. This usually entails getting participants to clarify their basic interests and then helping them to identify overlapping interests and to discuss options for accommodating those interests. Mediation would help make the goal of committee markups reaching a compromise, rather than just scoring political points. The mediator is simply a facilitator—a neutral third party who does not express substantive views on the issue and cannot impose a solution. In other words, members of Congress would not be giving up any of their authority or jurisdiction over an issue by allowing a facilitator into the committee room. Legislators are of course free to accept, modify or reject proposals that result from the process. And it’s a fairly flexible process: it could be used by members themselves, by their staffs, or by both. And it’s a process that could be open to media coverage or not, depending on the particular committee and the issues at stake. In fact, allowing television coverage might actually help to educate the public about the need for compromise in crafting legislation—and to show them that bargaining is not a sign of weakness or mere politics, but a necessary part of the legislative process.

I don’t want to suggest that every issue would be amenable to negotiated agreement. State legislatures have had the most success with the use of facilitators when communication between parties was at an impasse, when the issue was a recurring one that had gone unresolved for several sessions, when the issue was a negotiable one, and when the heavy influence of certain interest groups had made it difficult to reach agreement in the past. Strongly ideologically charged issues—such as much of the debate surrounding abortion—are less likely to be negotiable issues. Moreover, the process won’t work well if there are unreasonable time constraints or if there is not broad public concern about reaching a solution.

Most importantly, members of these state legislatures say that the use of mediators measurably helped improve working relationships between members . It gave them a cooperative history of working together which they could then try to apply by themselves to other issues. Given the intense partisanship that seems to prevail in the current Congress, I think what members really need is an environment in which they can engage in bargaining and compromise more constructively. In other words, this is really a process for encouraging dialogue and deliberation in a House that finds itself especially polarized. And I think if legislative solutions were reached by means of these discussions, public perceptions of Congress might in fact improve as well.

4. Independent Commissions and Expedited Procedures

The second recommendation I want to make today is that the Congress expand its use of independent commissions and expedited procedures. I think the majority of members would agree that the base-closing commission worked fairly well: authority to devise the list of closings was delegated to an outside panel and Congress committed itself in advance to fast-track consideration of its recommendations. This solves the problem of course that recommendations could be filibustered in the Senate, but it also makes it easier for members of both chambers to take credit for the outcome without shouldering too much blame.

Of course, not every issue can or should be delegated to an outside panel or subjected to expedited procedures. But I think it makes sense for the two parties to sit down separately and together at the start of each Congress to see what types of issues might best be handled outside the usual legislative process. There was of course some initial movement towards a bipartisan campaign finance reform commission, and I would encourage you to consider setting up a base-closing type commission to help resolve this most partisan and seemingly untractable issue. Again, the only reason I encourage you to consider non-traditional routes of legislating is because the old ways too often don’t seem to work.

5. Additional Recommendations for Floor Procedures

To wrap up, I would like to mention a couple of other recommendations for the OSR to consider.

Revamping one-minutes, special orders: Some good progress was made in the last Congress to revamp the practice of one-minute and special order speeches. In particular, allowing party leaders to orchestrate some of that time was an important step towards making these speeches more focused. I still think there’s room for improvement, since these speeches are still used disproportionately by more ideologically extreme members to stir up the partisan waters—for instance by debating the president’s patriotism. In particular, I think this floor time could be used to promote more constructive, perhaps bipartisan debate—something that would likely boost public approval of Congress. For instance, you might experiment with reserving some one-minute speech time for members who secure a co-sponsor from the other side of the aisle. The idea here is to raise issues in a constructive manner—rather than simply hewing to a party message.

Focusing floor debate: Another avenue for improving both the quality of debate and perceptions of Congress might be to use floor time a bit more constructively on issues of major public importance. I’d be willing to wager that the last “great” debate on the House floor—debate that garnered both public attention and public respect—was the debate over the Persian Gulf War resolution. In the past, there was an effort to try some Oxford-style debates, but I’m skeptical that this is the best way to gather significant public attention. Instead, I would recommend that on key amendments to major legislation the Rules Committee allocate longer blocks of time to amendment sponsors to give them a greater opportunity to develop their arguments and respond to criticisms. Thus, rather than making everyone abbreviate their comments so that every member can speak, a few individuals would be allotted the necessary time to offer more focused and cogent debate.

Cooling down partisanship: Finally, I would encourage you to push for any types of bipartisan ventures that would help to dampen bitter partisanship in the House. Any number of efforts might work well, such as bipartisan member retreats, joint leadership press conferences, and the like.