How to fix Congress: start with the basics

More than 10 years ago, Thomas Mann and Norman Ornstein began decrying the decline of Congress and calling for a return to the “regular order.” They wrote then:

Regular order in a legislature — produced by an elaborate set of rules, precedents, and norms governing the conduct of business in committee, on the floor, and in conference— is designed to facilitate orderly and deliberate policy making, ensure fairness, and maintain the legitimacy of Congress and the constitutional system.

This warning cry has become a symphony: Mann and Ornstein have been joined by actors as diverse as Sen. John McCain, Indivisible, and John Dickerson (among many others), all arguing that both chambers now function much worse than in recent history in the quality of their deliberation, oversight, and output.

While I share many of their specific complaints, I think “regular order” is a poor rallying cry for congressional reform for two reasons: a) nostalgia makes bad policy, and b) real progress requires a compass and a set of directions. If we want Congress to act like the “first branch” intended by the authors of the Constitution, a better path to reform would be to develop general criteria for an effective Congress and then identify realistic reforms to improve congressional action.

First, regular order is an unconventional rallying cry, useful only because it can mean lots of different things. As Don Wolfensberger points out, “regular order” is “a political Rorschach test in which each group perceives the ink blot according to its peculiar ‘ink-linations.’” Generally speaking, though, Wolfensberger explains:

The regular order can be defined as those rules, precedents and customs of Congress that constitute an orderly and deliberative policymaking process. The process includes an objective assessment of the problem through inclusive information-gathering; a balanced weighing of alternative solutions and coming to final judgment on a solution through robust debate among all parties.

However, if we take the term literally, when legislators invoke “regular order” during floor debate, it means “let’s get back to following the rules.” What does that really mean? The rules of the House and Senate both have the same underlying structure dating back to the 19th century:

This system allowed committees to set the agenda of their respective chambers. However, legislators often wanted to consider some bills on the calendar immediately while avoiding other bills entirely. Consequently, both chambers have spent the past 140 years developing new ways to ignore the regular order. If the goal of regular order is to get back to the “good old days,” we shall have to set the DeLorean for 1880.

Of course, going back to the 1880s is no panacea. On closer inspection, there are few professions with greater job security than “congressional critic.” One of the very first books by an American political scientist was Congressional Government, a blistering critique of Congress’s committee-based system and a love letter to the highly organized “messaging” parties we actually observe in today’s Congress.

Since then, the reformers have criticized congressional committees for being too weak (1940s) and too strong (1950s), and political parties as too weak (1950s) and too strong (2000s). Members are too corrupt (1900s), clubby (1950s), unethical (1960s to present), and overpaid (perennial), with inadequate staff support (1940s, 1970s, and 2010s), except when staff cost money (1990s). And there is too much filibustering in the US House (1890s) and Senate (1910s to present), except when one would rather see the majority fail.

Nostalgia dulls the memory. When was Congress great? Never. While the past 12 years have been worse than usual on several dimensions, we can’t “make Congress great again” by going backward.

Nor can we get home by clicking our congressional heels. Past and present are separated by a series of choices, both implicit and explicit. Many legislators now prefer messaging to legislating, fundraising to fraternizing, hostage-taking to compromise, partisanship to institutional integrity. A serious reform effort must take these choices seriously. Why do majority parties find open deliberation more costly than norm violations? Why don’t legislators find it in their interest to legislate? Why does Congress tolerate encroachment by the president and the Supreme Court?

If we want to understand why Congress fails as an institution, we first have to understand why legislators are rewarded for contributing to that failure. My assumption is that current members of Congress are not bad people overall. If voters replace them but leave the same incentives in place, the new members will replicate the failures of their predecessors. Similarly, adding more staff or lengthening the workweek of Congress would not, by itself, “fix” Congress. Given the current incentives, more staff could just mean more time freed up to fundraise, more partisan speeches to deliver, while longer workweeks means more time in DC to articulate the party message and hold roll call votes on amendments designed to be deployed in the next election.

The dysfunctional 115th Congress has amplified a bipartisan call for real changes in the way Congress operates. The next step for this conversation is to chart a way forward. I recommend five steps:

1. Set standards for Congress to meet. What do we expect legislators to do? What are the responsibilities of Congress as an institution?

2. Evaluate how well the House and Senate are doing on each standard.

3. Explain why legislators fall short of our expectations. This is the hard part, but also the most important.

4. Identify possible reforms that will alter legislators’ behavior.

5. Convince Congress to adopt the best reform suggestions.

This is more complicated than returning to the past. Congress may need new rules, new norms, that reflect irreversible changes in American politics since the “good old days.”