Congress in Crisis: Assessing Our Broken Branch, Pt. II

How We Got Here, Why It’s Getting Worse, & What We Can Do About It

Editor’s Note: This is the second article in our two-part series on Congress. Part I discusses the issues currently causing the problems in Congress. This part discusses how we got to this point.

“I think the most important man in the history of Congress, after [James] Madison, was Newt Gingrich. And I think Newt Gingrich destroyed congress”[1]

—Lawrence Lessig

A pivotal moment in the evolution of our modern legislature came in 1994, when Republicans won control of the House of Representatives for the first time in forty years. Their leader, Speaker Newt Gingrich (R-GA), vied to turn the party into, as Lawrence Lessig puts it in The Swamp, a “militant opposition” to the Clinton-era Democrats. His tenure as House Speaker would end four years later, but the strategies he utilized to reach the post would prove to be game-changing.

As Lessig explains, “One of the ways he changed the institution was to begin the process of shifting Congresspeople over to the life as fundraisers. He told them, ‘don’t move your families to Washington. We’ll work three days a week.’ The rest of the time, you know, he said you could be going home, but what happens is, the rest of the time they’re out there raising money. It becomes the perpetual campaign, which dramatically increases the amount of money that both sides are bringing into the process.”[1]

This new approach worked. According to Brookings data, the Republican Party raised some $396.9 million during the 1992 election year. By 1996, that number had nearly doubled to $736.5 million. Soon, Democrats would follow suit, jumping from $224.7 million to $426.7 million over the same time period, before their fundraising ballooned again to some $624.4 million in the year 2000.

Data Source: Brookings Institute

This shift would pave the way towards a combative legislature more preoccupied with fundraising form than lawmaking function. Bipartisan compromise would become more difficult than ever to achieve, not only because it would not be politically advantageous, but also because legislators’ constant campaigning would get in the way of any necessary relationship building. As Christian Science Monitor’s Francine Kiefer reports, “one of the most important but least-talked-about factors [that encourage partisanship] is the simple decline in personal relationships. Gone are the days when members of Congress lived in the Washington area, bonding over their children’s school events, golf, or at parties. Instead, they usually work an intense three days in DC and then travel to their home state. The lack of social interaction has led to an erosion of deep, cross-party friendships, which in turn feeds a deficit of trust—a crucial ingredient of legislating.”

Or, as former Senate Majority Leader Tom Daschle (D-SD) told Politico in 2009, “Because we can’t bond, we can’t trust. Because we can’t trust, we can’t cooperate. Because we can’t cooperate, we become dysfunctional.”

Gingrich’s Republican Revolution, as it was called, would also herald a dramatic increase in power for congressional leadership. “[His] change in the structure of power in the House,” says Lessig, “was all about assuring that the Speaker could direct everything. And the Democrats followed.”[1]

Such a change would not be easily reversed. “If you centralize power in the Speaker,” notes Justin Amash (L-MI), “that centralized power begets more centralized power. As the Speaker becomes more powerful, he or she becomes even more powerful, because if you as a member of Congress understand all power resides in the speaker, you will then give that person even more power. You have no other choice.”[2]

“We were told by leadership right from the beginning, ‘Here are all the goodies that you can enjoy if you play the game the way we want you to play the game.’”[1]

Taken simply at face value, the combative partisanship and constant fundraising focus of the post-Gingrich political paradigm already paint an unpleasant picture. But what is far worse is what follows from it: when money is seen as king, those who control money control everything. For our Congress, this has meant dangerously growing power and influence for both party leaders within the Capitol and the special interests parked just outside.

As Ken Buck (R-CO) explains, “the Speaker and the Minority leader control distribution of funds to members. So, it’s the rank and file that chooses the leadership, but people misunderstand that somehow we’re choosing people … that we think are the best at articulating our positions. That’s not true. It’s who can raise the money, and the special interest groups control the money. So, the hierarchy of power in Washington D.C. is special interest groups, leadership, rank-and-file members.”[1]

Indeed, these special interests are responsible for a tremendous amount of money going to Congress. According to OpenSecrets.org, Washington interest groups raised nearly $10 billion for members of Congress in 2019-2020. Among the top-spending companies contributing were tech giants Amazon and Facebook, defense contractors Raytheon and Lockheed Martin, and pharmaceutical giant Pfizer, each delivering upwards of $6 million.

As a consequence, congressional leaders have been chosen for some time for their fundraising prowess. For 2020, the top three fundraisers in the House of Representatives were Minority Whip Steve Scalise (R-LA), Minority Leader Kevin McCarthy (R-CA), and House Speaker Nancy Pelosi (D-CA). Each one raised upwards of $27 million.

Through their control of the distribution of incoming funds, these leaders wield enormous power over their parties’ individual memberships, and they make it known. As Amash contended in his Washington Post piece, “congressional leaders use every tool to compel party members to stick with the team, dangling chairmanships, committee assignments, bill sponsorships, endorsements and campaign resources.”

Loyalty is not the only criterion for selection, either. The emphasis on monetary draw trickles down the hierarchy. “Under Newt Gingrich,” notes Lessig, “committee chairmanships were increasingly assigned to people who raised money. And if you didn’t raise that money—the Democrats did this, Nancy Pelosi did this—you kicked somebody off the chairmanship.”[1]

This extends to committee memberships as well. “I think a lot of people would be surprised to find out that members of Congress are expected to pay their party for their committee assignments,” says Thomas Massie (R-KY), who has served in the House since 2013, “and this is like two hundred thousand, five hundred thousand, just to get a certain committee seat.”[1]

“Congressional leadership pull all the strings,” says Amash, “and the money essentially goes through them. And the individual lobbyists, if they’re going to donate to you at all, they’re getting it through the approval of the leadership.”[2]

Given his libertarian lean and habit of not toeing the party line, Amash would not be served well by this power structure. “I know for a fact that I was blacklisted under [former House Speaker] John Boehner, and that continued beyond that, where they told people, ‘don’t donate to this guy, don’t even bother with him.’ And that continued to the end of my time in congress.”[2]

“The biggest thing I’ve found in Washington is just this total risk aversion. I mean, people, they don’t want to rock the boat. And people who are in power have a stake in preserving that power”[1]

For the rank-and-file members who go along with Congress’ dangerous trends towards corruption and political theater, it is not as if their complacency goes wholly unnoticed. Given the general unpopularity of Congress, one might think that such behavior would create an electoral vulnerability. And perhaps, if they were in a competitive district, such a vulnerability might be fertile ground for an outsider opposition party candidate to run on.

Unfortunately, that is rarely the case.

According to the Partisan Voting Index (PVI), a widely used metric for populations’ political inclinations, most of the nation’s congressional districts tend to lean quite clearly one way or the other. According to 2020 Cook Political Report data, only 72 of the nation’s 435 districts have a PVI within five points. That means only these 72 have a difference of five percentage points or less between likely Republican and likely Democratic voters for any given race. In 1997, that number of so-called swing districts stood at 164, over double the current tally. These dramatic imbalances can be attributed in part to centuries of gerrymandering of district lines, and in part to more natural cultural alignments. Even among entire states, partisan tilt tends to be pronounced, with only 22 states claiming a PVI within eight points in 2020.

With such deep reds and blues coloring the map, many congressional elections tend not to be particularly competitive. In fact, some aren’t competitions at all. In 2020, 27 House races were run without major party opposition, actually down from 42 in 2018. In such cases, and in so many others where the outcome of the general election is foregone, the focus shifts to primaries.

These primaries tend to have very low turnout compared to their general counterparts. In early 2020, before the pandemic threw matters into disarray, fewer than 30% of eligible voters turned out across the nation for these preliminary competitions. This despite dramatically heightened political interest and engagement. Political independents, who generally have the lowest turnout rates among voting populations, are particularly inactive in primary season and sometimes wholly barred from participating.

A dynamic where competitive races are so limited creates far greater opportunity for congressional leadership to exert power well into the electoral process. As Amash explains, “a lot of the electoral risk comes from leadership. If [members of Congress] challenge leadership on something, their own leadership team on something, then they face electoral risk. If they stick with the leadership team, it almost doesn’t matter how they vote, they will be protected.”[2]

The dearth of healthy competition also serves to fuel the growth of hyperpartisanship in Congress. According to activist Katherine Gehl, founder of the nonpartisan nonprofit Institute for Political Innovation, “candidates know that the only way to make it to the general election ballot in November is to win the favor of these more extreme partisans in the primary. So candidates from both parties have little choice but to move towards those extremes.”

It would seem that playing the game is often the only way to stay in office, and that is more than enough motivation for most. “For many of the members of Congress, it’s a job that they don’t want to give up,” says Buck, “so their reelection is more important than the actual problem solving that needs to go on in DC.”[1]

The rewards, if they choose to keep playing, are not limited to sustained political power, and they often continue well after retirement. According to OpenSecrets.org, more than 400 former members of congress currently receive compensation from corporations and special interests, the majority of them working officially as lobbyists. They comprise the infamous revolving door of Congress, and showcase the most direct path from legislative service to personal enrichment.

For a few, the returns can be even more lucrative. Prominent former politicians can command well into the tens of thousands for speaking engagements. With book deals added in, these post-career earnings can reach well into the millions, with new media and new technology poised to pave even more roads to riches.

As more and more incentives, in forms of power and money, continue to favor those who fall in line with party politics and play the partisan games, the integrity of the legislature deteriorates, and its corruption becomes ultimately inevitable. Something, it would stand to reason, must be done.

“Everybody’s so obsessed with deciding what we should do, as if we can do something. Everybody’s arguing about, you know, should we have single-payer health care, or climate change legislation, as if it’s possible to get those things done. None of these issues can be addressed sensibly until we address the deep corruption inside of our government.”[1]

Given the decades of low favorability for the U.S. Congress, it should come as little surprise that a number of reforms have been suggested. Not all of these, however, can address the breadth and severity of the issues plaguing the least popular branch of American government.

The goal for Amash and other critics of the current state of affairs is a return to the so-called regular order. As defined in an extensive analysis issued by the Congressional Research Service (CRS) in 2020, regular order refers generally to “a systematic, step-by-step lawmaking process that emphasizes the role of committees: bill introduction and referral to committee; the conduct of committee hearings, markups, and reports on legislation; House and Senate floor consideration of committee-reported measures; and the creation of conference committees to resolve bicameral differences.” By and large, this was the prevailing way of doing things throughout much of the 1950s, ‘60s, ‘70s, and ‘80s, a period during which Congress would oversee the expansion of Social Security, the National Highway Bill, the introductions of Medicare and Medicaid, the Voting Rights and Civil Rights Acts, the National Environmental Policy Act, the Clean Air and Clean Water Acts, and  the formation of the EPA, among other accomplishments.

But a return to regular order is not so simple as passing a few procedural reforms, largely because regular order is in many ways ill-suited for our current partisan age. According to the CRS analysis, “Regular order legislating through bipartisan compromise is often harder to achieve in a polarized legislative environment.” Committees, central to the regular order process, would struggle to function, while the freedom to offer amendments may result in abuse in the form of poison pills or so-called “messaging amendments.” For some semblance of regular order, and the productivity that accompanied it, to be restored, would-be problem solvers must dig deeper.

Among the reforms most commonly proposed are congressional term limits, with proponents contending that it will help to wash away corrupt career politicians and bring in fresher faces ready to make actual progress. A constitutional amendment was even proposed in 1995, but made little headway. Instead, a Supreme Court case that year clarified that no states could impose their own term limits until one was passed by Congress. While the cause has maintained some popularity since then, it has not come close to law, with critics maintaining that it would take power away from voters, unnecessarily oust proven and effective lawmakers, and do little to actually cure congressional corruption, instead merely accelerating the political revolving door.

Another, perhaps even more controversial knob on the congressional mechanism is the earmark. A long-criticised practice of discretionary spending and allocation, earmarks were largely done away with in 2011, when both House Speaker John Boehner and President Barack Obama declared them unwelcome in the legislature. In the years since, however, critics have argued that they were unnecessarily vilified, that they were an essential tool for negotiation, and that they were particularly necessary as a negotiating tool for our current hyperpartisan age. Earlier this year, earmarks made their return to the Capital halls with new spending restrictions in place. But while it is true that the earmark ban coincided with a low point for congressional productivity, a downward trend had already been evident for decades. Moreover, if such discretionary spending—which can still reach some $14 billion annually under new restrictions—is necessary for the hyperpartisan Congress to be getting anything done, then perhaps there are deeper problems that need to be dealt with.

Yet another pathway towards dealing with the troubles of Congress lies in addressing the way elections are constructed. In his Emergent Order appearance, Amash noted the presence of straight-ticket voting in states like Michigan as a case of government unnecessarily limiting the potential of independent and third-party candidates, and instead encouraging a tribal approach which accelerates our dangerous trend towards hyperpartisanship. Election reforms such as ranked-choice voting might allow for a broader range of voices to break through the political noise and challenge the two-party duopoly. But election reform is a slow process, often demanding amendments to state and federal law, and no proposed system is going to be perfect.

Finally, there is campaign finance reform. To this end, no major law has been passed since 2002’s Bipartisan Campaign Reform Act, known also as McCain-Feingold, which placed limits on the use of soft money donations and issue advocacy advertising in elections. New reforms that have been attempted have encountered major hurdles, including the free speech protections granted by the 2010 Supreme Court case Citizens United v FEC of corporations and Political Action Committees (PACs) supporting candidates for office. One major ongoing attempt is John Sarbanes’ (D-MD) For the People Act, which seeks to create incentives for candidates forgoing PAC and corporate donations by using public financing to match small-donor giving, among other things. The bill was not without its detractors. Regarding its campaign financing provisions in particular, Matt Gaetz (R-FL) likening the use of taxpayer money to support campaigns to “welfare for politicians.”[1] Still, it made its way through the House of Representatives before being blocked by a Senate filibuster earlier this June, its ultimate fate undecided.

It’s likely that multiple dramatic changes will be needed to correct the course of Congress. As Amash puts it, “You eventually get to a point where … you just don’t have an out from the inside. You can’t correct it from inside the system. There are too many incentives in the wrong direction.”[2]

 “The power of this message, as it’s been used, this fighting corruption, fixing democracy, draining the swamp, whatever you want to call it, the electoral power of that is a validation that the public across the spectrum wants to see these changes.”[1]

If there is one cause for optimism among those seeking change in Congress, it should be the strength of the negative sentiment towards the current state of the branch. Decades of abysmal approval ratings show clearly that the public is well aware that there are problems in Washington. Particularly in our social media-centered age, where the loudest sentiments spread best, this engagement is essential.

In 2019, Sarbanes noted one hopeful example of this enthusiasm for change coming through in the electoral process. “Before January [2019],” he said, “there were seven members of Congress who were corporate PAC-free, and today it’s sixty—six zero. So, in one election, we’ve brought in a whole new cohort of members that are saying, ‘We want to do something different here.’”[1] It seemed that desire to do something different struck a chord with voters.

Certainly, this desire may be manipulated and abused, used by rabble-rousers or demagogues, or by those whose ideas for change may well not work. But it is also the necessary basis for any real, positive change that can come. And with so many minds working to solve the critical problems before us, the possibilities of such change are out there.

Yes, the data support what critics have contended for years: that Congress is overwrought with destructive incentives against constructive problem solving and towards partisan theatrics—that our legislative branch, fundamentally, is broken. But that doesn’t have to mean that it’s beyond repair.

1. The Swamp, directed by Daniel DiMauro and Morgan Pehme (2020; HBO Documentary Films, 2020), https://www.hbo.com/documentaries/the-swamp.

2. Amash, Justin. “NYT vs rational discourse and free speech,” Clubhouse, February 13, 2021.

Editors: Craig Carroll; Stacia Wilson
Peer Review Completed By 5 Individuals
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By Nathan C. Smolensky

Writer, Editor

A copywriter and marketing strategist by trade, Nathan Smolensky has also worked as a magazine editor, as the president of an educational nonprofit, and as a New York City schoolteacher.

As a longtime champion of non-partisan political innovation, Nathan has been associated previously with the Centrist Project (which later became Unite America) and with Unity2020. In 2018, he ran for congressional office as an independent candidate. Throughout these experiences, he maintained a presence as a political essayist and writer whose work has appeared in various publications, including Arc Digital.

As a writer with 2ndLook, Nathan is focused primarily on highlighting innovative solutions in the political sphere, getting to the root of longstanding issues, and helping to build a common language to break down tribal barriers and allow our national discourse to heal.

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