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Fixing Congress

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Location: Cambridge, MA

Former Senator Howard Baker once said, "There are three things I simply cannot understand: the Holy Ghost, the Middle East, and the House of Representatives." Baker is not alone; most people are mystified by Congress. But they do believe that it is badly broken.

I've been a congressman, off and on, for almost 30 years. I've witnessed the decline of Congress firsthand, but the decline is not what really worries me. Congress has been broken and fixed before; it's always been the butt of jokes. What worries me is that the United States, as the world's only superpower, cannot afford a congressional breakdown now. Worse, as an aging superpower, we may be losing our capacity for self-renewal. Until now, we've always been able to recover just in time; our greatest strength has been resilience. As Winston Churchill reportedly said, "Americans can always be counted on to do the right thing--after they have exhausted all other possibilities."

What follows is a fundamental critique of a Congress that Churchill would barely recognize. I focus on the House much more than the Senate because I know the House better, though the need for filibuster reform and other changes in the "upper body" is urgent. And because of my sense of urgency, I am going to offer my critique in topic sentences. This is a tough diagnosis, but it's better for the patient to hear the news early rather than late. There is still enough time to cure Congress: not much, but enough.

I see a Congress that is willfully blind to our nation's worst problems. For example, the true national debt is many times higher than most published figures suggest, much closer to $50 trillion than $15 trillion. Because Congress has exempted itself and the federal government from normal accounting rules, few people notice our unfunded obligations. Harvard Law Professor Howell Jackson is a rare leader; his research and writing have repeatedly shown the inadequacy of government accounting. But not even The Wall Street Journal reports the real "accrual" numbers--the numbers that reveal all the obligations that have been undertaken, not just the actual transfers of money. Few interest groups pressure the federal government to implement accrual accounting, so Congress sleeps. President Obama's Fiscal Commission was unable to wake us.

Tax expenditures--including deductions for home-mortgage interest and exclusions for employer contributions to health insurance--are another huge but overlooked set of policies. Tax breaks now exceed all appropriations, but Congress rarely holds hearings on this annual $1.3 trillion drain on the nation's revenues. We need tax reform now.

We also need to reform the core business of federal government: insurance. The giant entitlement programs, including Social Security, Medicare, Medicaid, and VA health care, as well as government-subsidized private insurance, are so expensive that, collectively, they dwarf even national defense and homeland security. Far more is spent on insurance than on interstate highways, national parks, scientific research, agriculture, etc. Yet, despite the dominance of insurance, Congress has no committee on insurance, no focused expertise on dealing with insurance issues.

Taxpayers are hiring mediocre talent, candidates who think their job is to ignore policy in order to get elected and reelected.

These vital entitlement programs are not, as politicians claim, sacred commitments, vested benefits, or even government promises: they are simply scheduled benefits that we do not know how to fund. Until we fix this disconnect between politics and reality, these programs are in jeopardy. The sooner we act to stabilize them, the more likely we are to save them. It will be painful, but we should be thankful we still have a little time.

Faced with daunting problems such as these, Congress often refuses to use the right tools. In fact, most members barely know what our toolbox contains. Year-round campaigning distracts us from learning how to craft legislation that works well. We learn instead how to craft ideas that sound good. Tax credits are a classic example. These sound golden on the stump, but are usually a waste of money, as MIT economist Jonathan Gruber has shown with regard to health-care tax credits.

Finally, Congress has grown spoiled because, these days, the president hardly ever vetoes legislation. For most of his administration, George W. Bush vetoed fewer bills than any president since Thomas Jefferson. Every president since Nixon has had the power to rescind spending programs approved by Congress, and each exercised that power hundreds of times. Our last two, however, have been reluctant. Bush didn't rescind a single spending item in his eight years in office. In his first speech to Congress in 2009, President Obama called, in essence, for an end to earmarks. The next day his Democratic Congress gave him 8,500 earmarks, yet he did nothing about them. I am thankful he threatened to veto any new earmarks in his 2011 State of the Union speech, but Congress won't believe him until he fights back.

So how did Congress get this bad? And why didn't we notice?

The 1980s
When Tip O'Neill was speaker in the 1980s, Congress was very different--imperfect but functional. O'Neill believed that he was speaker of the House--the whole House--not simply leader of the Democrats. His aim was not to see Democrats win every vote but to enable the House "to work its will." He criticized President Reagan during the day and drank beer with him at night. He was proud of his powerful committee chairmen, such as Dan Rostenkowski of Ways and Means.

On major policy issues, members were expected to vote their conscience and their district: O'Neill's was a House intent on making policy, not partisan mischief. It was the job of the eloquent majority leader, Jim Wright, to put together partisan majorities, and the job of the gentlemanly minority leader, Bob Michel, to defeat them. Members disagreed without being disagreeable. You were considered a party loyalist if you supported your party's position 70 or 80 percent of the time. Members knew exactly what they were voting on because an elite group of staffers called the Democratic Study Group wrote authoritative pro-and-con memos before every important vote. Dozens of Republican members subscribed to the Democratic Study Group because they trusted its work.

In the O'Neill era, members worked four or five days a week in Washington, D.C., where their families usually lived. Members knew each other fairly well and spent time with each other's spouses and children. A few members did belong to what O'Neill called the "Tuesday--Thursday Club," preferring a shorter workweek that allowed shirking of legislative duties. In their defense, these members could do constituent casework--an important congressional responsibility--as well or better back home in their districts.

Congress has grown spoiled. These days, the president hardly ever vetoes legislation.

On the House floor, "king of the hill" rules of debate were common. Under such rules, members were allowed to choose among competing solutions to national problems. The solution with the most votes won, sometimes even if another proposal had already received a majority. King-of-the-hill rules allowed members some freedom of choice, thereby making it harder to predict how they would vote.

The '80s were also different in terms of the fundraising expectations placed upon members and parties. Back then you never contributed to your colleagues' election campaigns except in emergencies. Campaigns could cost as much as several hundred thousand dollars, but only if they were hotly contested. Giving a colleague money was a kind of insult, as if you were handing them an unwanted tip that acknowledged their struggle for reelection. Likewise political parties did not dare charge members dues; on the contrary, their job was to help the members. The chair of the Democratic Congressional Campaign Committee, an arm of the House Democrats, worked in a modest room several blocks from the Capitol, near the page dormitory. Chairing a campaign committee was a chore, not a position of prestige.

The 1990s
Congress has deteriorated since the O'Neill era. An important turning point arrived in 1995, when Newt Gingrich became speaker. Gingrich centralized power in the speaker's office and politicized its function. He effectively merged the speaker's office with the majority leader's and whip's. Committee chairs were emasculated, their authority redirected to the speaker. Gingrich waged total war against President Clinton, even shutting down the government temporarily in an effort to get what he wanted. Whereas O'Neill had sought to promote the influence of the House, Gingrich's goal was to see Republicans win every vote.

Gingrich's rise to power was, of course, due to the Republican takeover of the House--the first Republican majority in 40 years. No incumbent Republican had ever governed in the majority, and no incumbent Democrat had ever served in the minority, so neither party knew how to behave. Majorities naturally tend to be arrogant and minorities irresponsible. The bitter debates surrounding the impeachment of President Clinton and the thousand subpoenas of the White House issued by Indiana Republican Dan Burton hardened the attitudes of many House Democrats. Compromise became a dirty word.

Gingrich ordered freshman Republicans not to move their families to Washington, D.C. because he thought they needed to campaign full-time at home. Soon everyone belonged to the Tuesday--Thursday Club. Members became strangers, the easier for them to fight.

The next speaker, Dennis Hastert, continued Gingrich's approach when he admitted that he listened only to Republicans, "the majority of the majority," as he put it. Congress became even more starkly polarized; party-unity scores, which measure how much the members of a party vote together, rose above 90 percent. Objective information sources such as the Democratic Study Group were banned. Leadership told members how to vote on most issues and force-fed talking points so that everyone could stay "on message." King-of-the-hill voting was ended. All major floor votes became partisan steamrollers with one big "yes" or "no" vote at the end of debate. No coherent alternatives were allowed to be considered, only approval of party doctrine. Instead of limited legislative freedom, a member's only choice was between being a teammate or a traitor.

Current law allows Congress to be flooded with money but demands that members stay dry.

The cost of campaigns escalated into the millions. Some members began spending day and night on "call time"--dialing for campaign dollars from telephone banks near the Capitol. Parties started dunning their members to pay a minimum of $100,000 in biennial dues, but some were charged many times more in order to remain "in good standing." Colleagues began demanding contributions from each other, sometimes just to pay their dues. Instead of legislating and doing casework, members of Congress morphed into telemarketers. The heads of party campaign committees suddenly had their pick of offices in the Capitol itself because they were being groomed for leadership.

Return of Democratic Control
When Democrats finally took back control of the House in 2007, Democratic leaders did not even try to return to the policies of Tip O'Neill. Rather, they quietly adopted most of the bad habits of Gingrich and Hastert, even of the notorious Republican leader Tom DeLay. Few Democrats remained who could remember the O'Neill era. We abandoned the idyll of Brigadoon and settled instead for Lord of the Flies. Some said it was impossible to go back because times had changed. Fox and MSNBC had certainly inflamed partisanship. Social media had popularized non-fact-based reality.

The truth is that the Gingrich-Hastert-DeLay model works … if you are only interested in partisan control of Congress. No speaker wants to yield to stubborn committee chairs or opinionated rank-and-file members. It's better to keep them in the dark because doing so quells dissent. It's also easier for back-benchers to follow the party line instead of thinking for themselves. This quasi-parliamentary system is certainly efficient. What's lost are the hallmarks of Congress as a policymaking body: open debate, independent decision-making, and the priority of national over partisan interests.

Today's Congress
Members of the 112th Congress took the oath of office earlier this year. Two of them missed the swearing in because they were attending a fundraiser. The first action on the floor was reading the Constitution aloud. The first weekend after the oath, a beloved colleague, Arizona Representative Gabrielle Giffords, was nearly murdered in Tucson. Since then, both parties have tried to behave more civilly; they even sat together during the State of the Union. The big vote that everyone is dreading is the debt-ceiling increase: whether Republicans will risk ruining the country's credit rating, and whether Democrats will join this appalling game of chicken.

But Congress isn't ready to do the people's work just yet. Instead, members are mostly concerned with redistricting and raising cash.

Redistricting
Many members are panicked about their districts disappearing in the next few months. They are devoted to their districts. Tommy Burnett, an old Tennessee legislator, used to say, "There are two things you don't mess with: my wife and my district … and not necessarily in that order." However, the Constitution requires that each member of the House represent the same number of people, currently about 700,000. Every ten years, the lines are redrawn to meet that requirement. Some states are losing congressional seats, others are gaining, and most will rearrange their existing allotment.

Let's be frank: Democrats and Republicans both love gerrymandering. Based on numbers from the authoritative Cook Political Report, I represent one of only 91 districts (out of 435 total) that I consider politically balanced, meaning that a strong candidate from either major party could win there. But both political parties think that 91 is too many. Each party is working hard to create fewer competitive districts. Advanced digital mapping and statistical analysis help them etch tiny lines on large and detailed maps, enabling them to split neighborhoods and blocks--because politicians know a great deal about your voting habits. The secret ballot is almost gone.

Today, both Democrats and Republicans are trying to hide the fact that regular voters have no voice in redistricting. It's a reverse election: voters like you don't get to vote, only politicians do. You don't choose them; they choose you. In most states the public is excluded from participating in their state legislatures' deliberations on redistricting. This secret election can determine the outcome of most congressional elections for the next ten years, possibly for generations.

Gerrymandering fosters extremism on the left and right because extremists are more popular in either highly Democratic or highly Republican districts, where candidates do not have to appeal to centrist voters. In such districts, primary elections determine the outcomes of general elections. Because relatively few centrist or independent voters participate in primaries, newly elected extremists are vulnerable only to someone more extreme. States with party-registration laws further protect extremists by outlawing independent as well as opposition voters. With a firm grip on their districts and no worries about alienating voters in the other party, gerrymandered extremists are often the loudest voices in Congress.

Recently I filed H.R.419, the Redistricting Transparency Act of 2011, a bill with twenty cosponsors that could reduce the incidence of gerrymandering by requiring disclosure of redistricting maps before new boundaries are enforced. This would give the public a chance to intervene and stop the abuse.

Money
Representative Barney Frank of Massachusetts has warned that today's campaign-finance law assumes that members of Congress always demonstrate "perfect ingratitude." In other words current law allows Congress to be flooded with money but demands that members stay dry. Good luck with that theory. You might as well allow professional athletes to take money from gamblers, so long as they promise not to throw any games.

Last year, the average member of Congress raised about $1.6 million for a job that pays a tenth of that. The ten most expensive House campaigns cost more than $8.5 million each and the top-ten Senate races more than $27 million each. A new member's lapel pin is probably the most expensive piece of jewelry in the world.

Some campaigns raised all that money; others were rescued--or attacked--with outside, "independent" television advertisements in the final weeks of the campaign. The Supreme Court's decision in Citizens United v. Federal Election Commission mobilized those commercial cavalries last year when it allowed corporations to campaign for the first time. Already these new troops have boosted election spending by $300 million, but the sky is the limit now that such mercenaries are legal.

I have several objections to Citizens United. First, allowing corporations, which are "artificial persons" under the law, free speech rights puts regular citizens--ordinary human beings--at a disadvantage in our democracy. A better name for Citizens United is Corporations Supreme. The Court should stop emancipating these artificial persons, these business robots. This year the Court is considering giving corporations privacy and due process rights. What's next? Voting rights for corporations and unions?

Second, Citizens United has the potential to increase dramatically the money involved in American politics. No matter how expensive campaigns are, they look cheap to major corporations. Businesses routinely spend far more advertising toothpaste, diapers, or potato chips--often with lower returns on their investments. In contrast, a million dollars cleverly spent on politics can easily turn into a billion in tax breaks or government subsidy. From what I can tell, that seems to be the going rate these days.

Gerrymandering can determine the outcome of most congressional elections for the next ten years.

Third, Citizens United allows attacks by unknown groups with hidden sponsors. You may never know which Citizens United cavalry saved or ruined your election because these mercenaries do not wear uniforms. The Federal Election Commission is unlikely to force timely disclosure because it is notoriously flat-footed, timid, and lenient. Already half of Citizens United spending is anonymous, a percentage that will grow.

Finally, Citizens United could reduce the role of Washington lobbyists. Why use a middleman if you can buy direct? This may seem like a good thing, but, despite all the criticism of K Street, it could be worse. Today's lobbyists are relatively identifiable (many are former members of Congress), and play with a relatively small amount of money (thousands not millions). To be sure, these lobbyists are not paid to advocate good government, but they usually support pretty-good government. In a Citizens United world, stateless advertising agencies could shape public opinion by satellite, cable, or radio without ever talking to a voter or elected official. By comparison, lobbyists don't look so bad.

Ironically the cure for Citizens United may be corporations themselves. This would be a welcome reprieve because, otherwise, we must amend the Constitution or change justices, both very difficult tasks. I doubt that most large corporations wanted the new freedom that the Court gave them, but will they resist the temptation to use it? For a few years, most companies will be unfamiliar and uncomfortable with their new electioneering powers, and may worry that they could lose market share if they offend customers. Meanwhile, a few corporate fanatics could damage the image of Citizens United spending, causing a backlash against the Court's decision. Which will come first: corporations mastering the art of campaigning, or consumer retribution against highly political firms? We can only hope for the latter.

Next Steps
Limiting gerrymandering and corporate political spending would help improve Congress, but deeper reforms are needed. In politics as in life, you get what you pay for. In politics today, taxpayers are hiring mediocre talent, candidates who think their job is to duck the big policy issues in order to get elected and reelected. Fixed salaries do more to perpetuate the status quo than most people realize.

Today, it is almost unthinkable to suggest paying Congress for results. Many other professionals, however, such as teachers, physicians, CEOs and athletes, are increasingly paid for performance. Why not members of Congress? (Note: I am not advocating an overall congressional pay raise.) The first objections will come from members themselves because they hate the thought of taking full responsibility, looking bad, or making less money than a colleague. It is precisely that fear, however, that promotes better behavior. Why not pay members of Congress for performance? Surely there's a way to measure and reward high-quality legislative work.

Here's a thought experiment: what if members were paid on commission to cut spending or to repeal obsolete laws? My bet is that you'd start to get some real action on budget deficits and redundant statutes. Of course, Congress should already be doing these things, but carrots make both donkeys and elephants move faster.

Salary reform alone won't get the job done, so here's another thought experiment: what if members could only raise money from people who live in their districts, not outside interests? That would put a premium on residency and raise the stakes of redistricting. It would also give local taxpayers more influence.

Incentives matter, and today's incentives are simply not working. We need better people to run for office. We need them to focus on the most important issues. We need fewer, better laws, not more loopholes. We need more attention to policy, less to partisan politics. Empowering citizens to craft incentives is a way to ensure that we get the right kinds of candidates.

The real surprise in discussing merit pay for members of Congress is the realization that special interests have been paying members on that basis for decades. Political action committees (PACs) give more money to members who are effective in advancing their interests. Then they hire them as lobbyists after they leave office. PACs write much bigger checks than individual taxpayers do--the limit on their contributions to individual candidates is twice as high, and there is no limit to how much they can give to a party. Now Citizens United has put special interests on steroids. It turns out that taxpayers are the only ones who are not paying members for performance. Maybe it's time for taxpayers to benefit from the same level of performance that special interests have been receiving.

The average tenure of a House member is about ten years, just long enough to get a government pension and start looking for better-paying work lobbying Congress. Congress used to be an honored destination, but now it is a steppingstone to special-interest wealth. Because of this revolving door, Congress has long been a farm team for K Street; after Citizens United, it could become a wholly owned subsidiary.

We should expect more from Congress, but let us not expect too much: that is a recipe for disillusionment. Cynics, they say, are disappointed romantics. Congress will always be a sausage factory, but it can be a better sausage factory if we get the incentives right and if top-quality people volunteer or at least help those who do. Teach for America could channel its participants into campaigns or government if they decide not to stay in education; law and business schools could start "Lawyers for America" or "Business for America" to help us reform Congress.

Despite the flaws of Congress, we should never lose faith in our country, our ability to bounce back from adversity. The very fact that we know Congress is broken should give us hope: it is a sign that help is on the way. Once diagnosed, the body politic automatically starts to heal, and the worse we feel now, the prouder we will be of our recovery.

As Mark Shields said of the Tucson shooting, quoting a historian friend of his: "We saw a white, Catholic, Republican federal judge murdered on his way to greet a Democratic, woman, member of Congress, who was his friend and was Jewish. Her life was saved initially by a twenty-year-old Mexican American college student … and eventually by a Korean American combat surgeon. … And then it was all eulogized and explained by our African American president."

Only in America.


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