Reports
How the Legislative Branch is Broken and What We Can Do About It
The 116th Congress, when it gavels into session in January, will have one of the largest freshman classes in modern history — with more than 90 new members in the U.S. House of Representatives. This is, at least in part, because a staggering number of lawmakers decided to leave Congress during the 115th Congress — including eight Republican committee chairs as well as House Speaker Paul Ryan (R-WI), who became the second Speaker in a row to voluntarily walk away from the most powerful position in the House of Representatives.
Collectively, these outgoing lawmakers are taking with them decades’ worth of policy, political, and procedural expertise, and are part of a disturbing trend that will likely continue to eat away at the institutional knowledge of Congress.
The biggest reason for this mass exodus, say a number of lawmakers, is the partisanship and dysfunction of Congress. That is why Issue One and the R Street Institute teamed up for this report to interview a select group of members of Congress from both parties who were vocal about why they chose not to return to Congress next year. These conversations revealed the institutional dysfunction that led them to give up their positions and highlighted the structural reforms that Congress could — and should — make to help restore the American people’s faith in the legislative branch of government.
In all, 52 House members chose not to run for re-election in 2018, well above the historic average. Only once since 1930 — in 1992, when 65 House members retired — was the number of voluntary departures higher than it was this election cycle, according to the Brookings Institution.
Today, there are a host of unaddressed institutional dynamics that make the main roles of a member of Congress — to represent their constituents and to thoughtfully debate legislation — almost impossible to fulfill. Everything from the House calendar to the growing centralization of power means that a majority of House members — even once-influential committee chairs — have less power vis-à-vis top party leaders.
Far too often, House members today have little say in how bills are drafted and are expected to simply toe the party line. They are also asked to continuously fundraise for themselves and for their parties, lest they suffer diminished leadership and legislative opportunities.
Of course, many departing House members speak about wanting to spend more time with their families and less time in Washington. Yet many outgoing lawmakers have also used their retirements to shine a light on the ways in which Congress is broken and how that made their time in the legislative branch difficult.
For instance, outgoing Rep. Ileana Ros-Lehtinen (R-FL) stated last year that the partisanship in Congress today is a “detriment to civility and of good government.” Retiring Sen. Jeff Flake (R-AZ) has noted that the current “tribal nature of politics” leaves “no room for compromise or doubt.” And retiring Rep. Rick Nolan (D-MN), who previously served in Congress in the 1970s, has said “the legislative process has changed dramatically” over the past several decades, in part because of the increased fundraising demands now placed on lawmakers as well as the rise of so-called “closed rules” that limit legislative debate.
Taken together, the comments of outgoing members of Congress reveal a systemic failure that has the potential to diminish the country’s faith and trust in the institution of Congress itself, damaging the health of the nation as a whole.
Is serving in Congress today really that different from past eras? In short, yes. And it will take cooperation from lawmakers in both political parties to make Congress what it should be — a co-equal branch of government that represents the interests of the American people and gets things done.
Party leaders have long been empowered with tools to help members of Congress fulfill their representative and policy-oriented duties. Leaders can help members with chairmanship bids, put them on committees where they can better serve their constituents or make use of their policy expertise, or carve out floor time for votes on their bills or for them to debate policy.
The problem today is that most of these opportunities no longer exist for a majority of members of Congress.
Today, policy-making has become centralized to the point where party leaders, not committee chairs, determine legislative language and strategy. Wielding the gavel may allow a chair to set the committee’s agenda, but that agenda is not going anywhere unless the leadership allows it to
“Times aren’t like they used to be,” Rep. Mike Simpson (R-ID) has said. “Yeah, leadership needs to give direction, but the committee chairmen aren’t what they used to be.”
Former Rep. Charlie Dent (R-PA), who stepped down from his seat in Congress in May after serving 13 years in the House, agrees. “I think it’s fair to say the leadership exercises a lot more control on chairmen than they did in the bygone era,” he told Politico earlier this year.
Many congressional observers have also pointed out that serving in Congress is miserable for anyone who actually wants to get things done since leadership has centralized control of the legislative agenda and has not made it a priority to review how the body as a whole functions.
Speaking to the frustration he and his freshman colleagues felt about their inability to move bills, Rep. Trey Gowdy (R-SC) once lamented: “Do I think I’m making a difference? No. Not from a legislative standpoint.”
Gowdy’s opinion of Congress has not changed much over the eight years he has served, even when, as part of a meteoric rise, he became chair of the House Oversight and Government Reform Committee. In announcing his decision to retire from Congress earlier this year, the former prosecutor said: “Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system.”
Just how much have things changed? A recent joint investigation by the Washington Post and ProPublica meticulously detailed “how Congress stopped working.” The news organizations were stark in their conclusions. “Today’s legislative branch, far from the model envisioned by the founders, is dominated by party leaders and functions as a junior partner to the executive,” they wrote.
Among the investigation’s key findings:
These startling changes jibe with the recollections of Rep. Rick Nolan (D-MN), who served three terms in Congress after being elected in 1974 and then was re-elected to the House of Representatives in 2012 after 32 years out of office.
“The changes from when I served in the ’70s to now are dramatic,” Nolan told Issue One and the R Street Institute in a recent telephone interview.
During Nolan’s first term — in the 94th Congress — 91 percent of legislation came up under a so-called “open rule,” meaning that any House member could offer germane amendments for consideration. During the 115th Congress, that number fell to zero, according to information gathered by Nolan’s office from the Congressional Research Service.
Nolan said that debating a multitude of amendments helped members of Congress build alliances and find common ground for cooperation. “That’s how members get to know each other, and what their real feelings are about issues,” Nolan said. “When the rules are structured, or closed, the work of the Congress becomes greatly simplified.”
This simplification — in which members of Congress spend less time debating ideas and less time in committee hearings — is by design and empowers party leaders. It also allows members of Congress to spend more time raising money for elections that have become increasingly expensive affairs.
One major way the schedule has changed for lawmakers is that the House of Representatives is typically no longer in session five full days a week. Lawmakers now generally arrive in Washington, D.C., late Monday afternoon for evening votes and typically fly home on Thursday evening. Current and former members of Congress say this allows them to spend more time in their districts, but it comes at the cost of building relationships with their colleagues in the nation’s capital.
Back in the 1970s, Nolan said, it was “preferable” for lawmakers to bring their families to Washington. This created more opportunities for members of Congress to get together and socialize.
Nolan’s observations were echoed by Rep. Niki Tsongas (D-MA), who was elected to Congress in 2007 and whose late husband Paul Tsongas was, like Nolan, first elected to the House of Representatives in 1974. Paul Tsongas went on to serve two terms in the House and one term in the Senate.
“The reality is we’re not in Washington as much as we once were,” Tsongas told Issue One and the R Street Institute in an interview. “When my husband was in office, we moved to Washington. We had frequent opportunities to socialize with one another … You got to know people in a very different way. That’s just not possible now.”
Congressional observers say former House Speaker Newt Gingrich (R-GA) bears much responsibility for the current rhythm of congressional life — the schedule as well as the dysfunction.
Rep. Steny Hoyer (D-MD) once credited Gingrich with pioneering the idea that “the minority wins when Congress accomplishes less.” And once Gingrich and his fellow Republicans wrested power away from House Democrats in 1994, Gingrich, according to The Atlantic, “reoriented the congressional schedule around filling campaign war chests, shortening the official work week to three days so that members had time to dial for dollars.” Gingrich also used closed rules as a way to make the floor schedule more predictable for members who needed time to fundraise.
Another big change that Republicans made when they took power after the 1994 midterm elections — the GOP’s first majority in the House in 40 years — was opting to limit their committee chairmen to serving no more than three two-year terms.
While House Democrats do not place term limits on the leaders of congressional committees, Gingrich and his fellow House Republicans instituted this rule in 1995, saying it would give junior members a shot at committee chairmanships without having to wait decades and arguing that it would ensure that new policy ideas continued to circulate in the Republican conference.
But this decision to create term limits for committee chairs often leads to Republican lawmakers lacking the opportunity to become serious policy experts.
Former Rep. Tom Davis (R-VA) once told USA Today that one reason this rule was imposed was because committee chairmen had become too powerful. But, Davis added, this change inadvertently increased the power of congressional leaders, causing the legislative process to suffer.
Some members of Congress find it difficult to return to the rank-and-file after serving as chair of a powerful committee, and term limits on chairmanships clearly played a role in this election cycle’s surge in congressional retirements.
Rep. Jeb Hensarling (R-TX), the outgoing chair of the House Financial Services Committee, seconded Davis’ observation. “Are term limits playing a role in an exodus of chairmen, along with collective years of wisdom? Of course it is.”
In announcing his retirement, Hensarling commented that “the time seems right for my departure” because his term as the top Republican on the House Financial Services Committee was over.
Reps. Bill Shuster (R-PA), Ed Royce (R-CA), and Rodney Frelinghuysen (R-NJ) all likewise noted in their retirement announcements that 2018 was their final year serving as the chairmen of their respective committees. And Rep. Frank LoBiondo (R-NJ) said it seemed like an “appropriate time to leave” this year because he was term-limited as the chairman of the House Transportation and Infrastructure Committee’s aviation subcommittee.
The current system, with its massive fundraising expectations, centralized power, and term limits on committee chairs, is the only system that most House Republicans know. At the beginning of the 116th Congress, only eight House Republicans will have tenures that predate this 1995 rules change.
Of course, not all 435 members of Congress can serve as the chairs of committees or subcommittees. Nevertheless, the legislative branch should afford more opportunities for debate and discussion to allow rank-and-file legislators the capacity to learn and legislate.
Today, each party pushes its members to raise funds to help the party — to either stay in the majority, or to regain the majority. Many outside of Washington, D.C., are unaware that the Republican and Democratic parties alike use systems of “party dues,” in which lawmakers are given fundraising quotas to raise money for either the National Republican Congressional Committee (NRCC) or the Democratic Congressional Campaign Committee (DCCC), with plum committee assignments — and committee chairmanships — requiring even larger hauls.
These fundraising demands take legislators away from doing the people’s work, incentivize members of Congress to seek campaign cash from the interests they regulate, and elevate fundraising skills over policy knowledge when it comes to who shapes legislation.
As Issue One highlighted in its groundbreaking “The Price of Power” report, party dues are notably higher for those lawmakers that chair committees, especially committees that are perceived as more powerful or that oversee wealthy industries. Baking fundraising dues into an already broken political system relegates many members of Congress to the role of telemarketers rather than the legislators they were elected to be.
Members of Congress are able to funnel an unlimited amount of money from their official campaign committees to party committees such as the NRCC or DCCC. The gavels on the most sought-after committees now “cost” more than $1 million in party dues, according to Rep. Ken Buck (R-CO), and fundraising requirements come on top of the money members of Congress must raise for their own reelection campaigns.
Rep. Thomas Massie (R-KY), who was first elected to the House of Representatives in 2012, has said that party leaders’ efforts to get him to pay his dues went so far as reminders being stuffed into his pockets during votes on the House floor “just to remind you that you owe some money if you want to keep your committee assignment.”
Massie continued: “The incentive structure is set up to get you to sell out to lobbyists because they’re the only ones who have the currency you need … to buy your committee assignments.”
At a recent exit interview event hosted by the R Street Institute, retiring Rep. Jimmy Duncan (R-TN) bluntly observed that party leaders deliberately instituted a system that ties party dues to leadership “because it gave the Speaker much more power.”
Asked what happens when members do not pay their party dues, Duncan — who spent 30 years in the House of Representatives and never helmed a full committee — said: “Listen, you don’t get these chairmanships.”
He added: “I’m amazed that the media has not criticized this … I think that’s really unfortunate that your knowledge of a committee or your hard work on a committee doesn’t mean much at all. What means most is how much money you raise and whether you’re willing to give your voting card to the leadership.”
Other members of Congress acknowledge the party dues system, even if they do not entirely share Duncan’s hostility toward it.
In an interview with Issue One and the R Street Institute, former Rep. Charlie Dent (R-PA), who stepped down from his House seat earlier this year, confirmed that the GOP leadership had higher expectations of him once he became a subcommittee chair.
“Here’s the deal. When I went on the Appropriations Committee, and certainly when I became a subcommittee chairman, the expectation was to contribute more money to the NRCC,” he said. “I didn’t fight it. I just dealt with it. Frankly, because my races were less competitive, I could spend more time raising money for the team, so to speak, than for myself.”
Meanwhile, outgoing two-term Rep. Ryan Costello (R-PA) said, during another exit interview event this fall hosted by the R Street Institute, that members of Congress typically hire good fundraising staffers who know that “part of their job is to make sure you’re not spending a lot of time [raising money].”
Costello estimated that he spent five to ten hours per week fundraising during his first term, adding “now I’m on [the] Energy and Commerce [Committee], so it’s a little bit easier.”
Former Rep. Zach Wamp (R-TN), now one of the co-chairs of Issue One’s ReFormers Caucus — the largest bipartisan group of former members of Congress, governors, and Cabinet secretaries ever assembled to advocate for political reform — recently told Roll Call that fundraising pressures do take a toll on a lot of lawmakers.
“I don’t know of a single member that is leaving that does not include the pressures of raising money to advance and maintain your committee position as one of the contributing factors. They all talk about it. It wears you out,” Wamp said. “That’s the inconvenient truth of Congress today: You’re a money machine. There is more focus on that than solving the country’s problems. For good people, that’s a real bummer.”
Outgoing Rep. Lynn Jenkins (R-KS), likewise, acknowledged in an interview with Issue One and the R Street Institute that “we’re all frustrated by [the amount of fundraising].” She even joked: “My mom had taught me not to talk a lot about myself and never ask strangers for money, and then, that’s all I’ve done for the last ten years.”
Retiring Democratic lawmakers echoed these sentiments as well.
In an interview with Issue One and the R Street Institute, Rep. Niki Tsongas (D-MA) noted that “the seriousness of your candidacy is often measured by your ability to raise funds.”
Raising money for re-election efforts every two years, she continued, “gets to be particularly wearing.” And she asserted that easing fundraising responsibilities for members of Congress would allow them to “have much more time to dig in” and learn about “the complexities of the issues that they’re having to vote on.”
That assessment is shared by Rep. Rick Nolan (D-MN), who said campaign professionals generally recommend that lawmakers spend 20 to 30 hours a week raising money, adding that he has been “criticized and reprimanded” by his Democratic colleagues and party leaders for not spending enough time raising money.
“I hate to say fundraising is not hard work. It’s very hard work. But it’s not the people’s business,” Nolan said, stressing that members of Congress should go to Washington “to work on the people’s business.”
When asked to reflect on their time in Congress, what they will miss most, and what they will happily leave behind, many soon-to-be retirees point to the current lack of civility that pervades Capitol Hill.
Rep. Jeb Hensarling (R-TX) told Politico: “I’ll miss least the people who have no discernible political principles. I’ll miss most the people who do.” Bemoaning the lack of bipartisan problem-solving, Rep. Sam Johnson (R-TX) observed: “What I will miss least is the current polarization and common refusal to listen to or respect others’ ideas.”
Former Rep. Charlie Dent (R-PA) told Issue One and the R Street Institute that over his time in Congress, “Washington became a lot more ideological.”
Dent said: “In Washington, we have a number of members on both sides who get very dug in. Their political safety is tacking hard to their bases, and in many cases the fringe elements of the bases. And their political safety is staying close to the base. They don’t see a political reward in seeking consensus or compromise. In fact, quite the opposite. They believe there will be a penalty or a punishment for seeking cooperation or compromise.”
Dent has described himself as “a member of the governing wing of the Republican Party,” a contingent that he says dwindled during his 13 years in Congress.
“If you’re in the majority party, you have an obligation to govern,” Dent told Issue One and the R Street Institute. “It’s that simple. There are a lot of people in Washington who are very good at telling you all the things they can never do. But at some point someone has to say yes. Yes, that we must keep the government funded. Yes, that we will not default on our obligations.”
Most voters, Dent said, want their government to function better.
“People expect you to actually do your job,” he said. “Most of them aren’t caught up in the weeds of whatever the ideological fight is of the moment.”
Rep. Frank LoBiondo (R-NJ) seconded this view in a statement announcing his retirement: “As some of my closest colleagues have also come to realize, those of us who came to Congress to change Washington for the better through good governance are now the outliers. In legislating, we previously fought against allowing the perfect to become the enemy of the good. Today a vocal and obstinate minority within both parties has hijacked good legislation in pursuit of no legislation.”
In an interview with Issue One and the R Street Institute, outgoing Rep. Lynn Jenkins (R-KS) lamented that some members of Congress from both parties “just oppose the other side for no other reason than they don’t like the other side.”
Some political scientists believe that polarization can be traced to the threat of primary challengers on incumbents, which drives “leaders to structure the legislative process in such a way that makes Democrats and Republicans appear more extreme than they really are.”
A paper by James Wallner of the R Street Institute and Elaine Kamarck of the Brookings Institution argues that members of Congress consistently articulate fears about facing primary challengers, even if that’s not especially likely to happen, and they adjust their behavior accordingly.
In interviews with Issue One and the R Street Institute, many outgoing lawmakers stressed the importance of bipartisanship in being an effective member of Congress.
“A lot of people out in the country think we all hate each other up here, and that’s not true,” said Rep. Jimmy Duncan (R-TN). “If you try, you’re pretty much able to get along with everybody on both sides.”
Added Rep. Dennis Ross (R-FL): “If you want to accomplish something in this process that’s going to be good, you have to do it, in my opinion, in a bipartisan fashion.”
Rep. Niki Tsongas (D-MA) praised the “great tradition of bipartisanship” on the House Armed Services Committee, on which she served.
“We’re asking a lot of those who are serving, we have to be sure that we are supporting them in every way we can,” she said. “One of the bottom line responsibilities of the federal government is how we defend our country, and that bottom line responsibility commitment is shared on both sides of the aisle.”
Tsongas added that when she came to Congress in 2007, she was “committed to reaching across the aisle” even though House Democrats were in the majority, and she recommended that new lawmakers “arrive with that commitment” in order to be effective in Washington.
“When we lost the majority, those that I had reached out to were willing to reach back across the aisle,” Tsongas said, adding that, especially in the minority, you need to have “a partner across the aisle who will help you get [things] done.”
How does Congress become a more functional and efficient body that better represents the interests of the American people and acts as a truly co-equal branch of government?
A first step is ensuring that there is bipartisan buy-in for the necessary structural changes.
Last month, Reps. Derek Kilmer (D-WA) and Ken Buck (R-CO), two of the co-chairs of the Congressional Reformers Caucus, made the case in an op-ed in The Hill that “reformers in Congress must work together to make it more productive and responsive.”
Too often these days, they wrote, “bickering bests bipartisanship.” But, they argued, it does not have to be this way.
The co-chairs pledged to raise a series of bipartisan reform ideas in the coming months with members of the House Rules Committee and party leaders in both political parties. They also solicited bipartisan support for these proposals from their colleagues. Among the goals of their reforms: To remove some of the polarization in politics, to empower individual members of Congress, to restore the role of committees in the legislative process, and to return the House of Representatives to “regular order,” in which there would be increased debate and deliberation of all reasonable and germane amendments. These changes, Kilmer and Buck wrote, could return Congress to “functioning the way ‘Schoolhouse Rock!’ describes it.”
One of the key ideas proposed by Kilmer and Buck is the creation of a select committee to “look at how the House’s leaders allocate committee assignments, committee jurisdictions, the role of fundraising in the legislative process, the schedule of hearings and votes, and many other items.”
Such a committee would be a welcome move.
Congress has done this before. In the 1940s, and again in the 1960s, Congress established committees to examine and assess the issues contributing to congressional dysfunction during those eras. Issue One and the R Street Institute agree with Kilmer and Buck that the time is ripe for a similar undertaking.
Additionally, a number of other important reforms should be considered when the 116th Congress convenes in January:
This report highlights a systemic failure within the legislative branch of Congress that must be urgently addressed.
Each lawmaker, from committee chairs to rank-and-file members, should be empowered to be the legislator they were elected to be, not just “a powerless cog in a sputtering machine” that must also “work as a telemarketer” to “fundraise nonstop” for their own re-election efforts and for the political parties, as Lee Drutman, a senior fellow at New America, has put it.
The good news is that Republicans and Democrats in Congress increasingly support reforms.
In their op-ed in The Hill last month, Reps. Derek Kilmer (D-WA) and Ken Buck (R-CO) called on the 116th Congress to “create a new set of rules that gives Americans the faith that their Congress is working as hard as the people counting on it to function.” That sentiment was also recently echoed by Rep. Mike Gallagher (R-WI), another co-chair of the Congressional Reformers Caucus.
“We must reform the processes and power structures of Congress, or we will further tear our country apart,” Gallagher implored. “A great country such as ours deserves a functional legislature — and only structural reforms can deliver it.”
We wholeheartedly agree. •
This report was written by Marian Currinder, senior fellow at the R Street Institute; Michael Beckel, manager of research, investigations, and policy analysis at Issue One; and Amisa Ratliff, research intern at Issue One. Sydney Richards of Issue One also contributed to this report.
Issue: Congressional Dysfunction
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