A Better Congress: Change the Rules, Change the Results: A Modest Proposal, by Joseph Gibson
A Two Seas Media book
1. “41% Say Random Selection From Phone Book Would Do A Better Job Than Current Congress,” Rasmussen Reports poll published May 20, 2010
2. “Dems in power could be in peril, poll says,” by Susan Page, USA Today, USA Today/Gallup poll published September 3, 2010
3. “75% Say Congress Should Cut Its Own Pay Until Budget is Balanced,” Rasmussen Reports poll published, August 31, 2010
4. Politico/Battleground Poll taken September 19-22, 2010 (14-page PDF )
CNN/Opinion Research Poll taken August 6-10, 2010 (9-page PDF )
7. U.S. Const., art. V. Constitutional amendments generally require the concurrence of two-thirds of both chambers of Congress and ratification by three-fourths of the states.
Introduction–Those Who Come to Congress Become Congress
For more on members’ family lives, see Michael L. Koempel and Judy Schneider, Congressional Deskbook: The Practical and Comprehensive Guide to Congress, § 1.60 Family Life (5th ed. 2007) (hereafter “Congressional Deskbook”)
Part I. Why Congress Does Not Work Well
Ch. 1 – The Fortress of Incumbency
9 “Fairness of Elections: 55% Say Most in Congress Reelected Because the Rules Are Rigged,” Rasmussen Reports poll published September 21, 2010
13. For more on these resources generally, see Congressional Deskbook, Chapter 5. Supporting Congress: Allowances and Staff. For more on constituent outreach activities, see Congressional Deskbook, § 3.10 Constituency Pressure.
14. This book uses the term “organized interests” rather than “special interests.” So-called “special interests” are not special. They are simply groups of citizens trying to get their way in the legislative process. They are neither worse nor better than other citizens. What distinguishes them is that they have organized a united effort to accomplish their goals. For more on the nature of organized interest groups, see Joseph Gibson, Persuading Congress, Chapter 12, Interest Groups and Lobbyists (2010) (hereafter “Persuading Congress“) and Deanna Gelak, Lobbying and Advocacy, § 1.4 What Are Special Interests? (2008) (hereafter “Lobbying and Advocacy“).
15. For more on how organized interests can contribute to congressional campaigns, see Lobbying and Advocacy, §§ 2.25, 2.26, 2.27, and 2.28 (political campaigns and compliance).
16. In 2010, campaign contributions from individuals were limited to $2,400 per election as well. For purposes of these restrictions, primaries and general elections are treated as separate elections. For more on compliance with election laws, see the website of the Federal Election Commission, “Help with Reporting and Compliance,” at: <http://fec.gov/info/compliance.shtml> and Congressional Deskbook, §§2.10, 2.20.
17. The individual limitation has the same effect as the limitation on PAC contributions. This book generally refers only to the PAC limitation to simplify the discussion. See “Quick Answers to PAC Questions” from the FEC.
18. “Money Wins Presidency and 9 of 10 Congressional Races in Priciest U.S. Election Ever,” OpenSecretsBlog, November 5, 2008
19. For more on the financial pressures of congressional campaigns, see Lobbying and Advocacy, § 2.25 The Financial Pressures of Political Campaigns.
20. For more on congressional ethics, see Congressional Deskbook, § 4.30.
23. In 2010, several Senate candidates who unexpectedly lost primaries contemplated write-in campaigns in the general election. Only one, Senator Lisa Murkowski of Alaska, actually launched such an effort. For more on write-in campaigns, see Write-in candidate (Wikipedia), and YouCanWriteIn.com.
Chapter 2 – The Ordeal of a Campaign
25. For more on the kinds of people who run for Congress, see Persuading Congress, Chapter 3, Members of Congress.
27. For more on how candidates can use these tools, see Media Relations Handbook, by Brad Fitch, Chapter 6, Web-Based and Online Communications (2004).
Chapter 3 – The Skills Mismatch
Chapter 4 – The Congressional Bubble
30. “ATMs a mystery to senator,” by Joseph Morton, Omaha World-Herald, May 20, 2010
Chapter 5 – Procedures Designed to Divide
33. In parliamentary parlance, an amendment that relates to the same subject matter as the underlying bill is said to be “germane” to the bill. Generally speaking, in the House, amendments must be germane. In the Senate, amendments need not be germane except in very limited circumstances.
34. For more on Senate floor procedures, see Congressional Deskbook, §§ 8.160-8.250.
35. For more on House floor procedures, see Congressional Deskbook, §§ 8.70-8.140.
36. For more on procedures for reconciling differences between the House and the Senate, see Congressional Deskbook, §§ 8.260-8.280
Chapter 6 – The Drive for Reelection
Chapter 7 – “Accomplishments”
38. The 110th Congress, which sat in 2007-08, enacted eleven laws that related either to a specific disease or medical problem or a small cluster of them. National Breast and Cervical Cancer Early Detection Program Reauthorization Act of 2007, Pub. L. No. 110-18, 121 Stat. 80 (2007); An Act to Amend Title 39, United States Code, to Extend the Authority of the United States Postal Service to Issue a Semipostal to Raise Funds for Breast Cancer Research, Pub. L. No. 110-150, 121 Stat. 1820 (2007); Newborn Screening Saves Lives Act of 2007, Pub. L. No. 110-204, 122 Stat. 705 (2008); Traumatic Brain Injury Act of 2008, Pub. L. No. 110-206, 122 Stat. 714 (2008); Caroline Pryce Walker Conquer Childhood Cancer Act of 2008, Pub. L. No. 110-285, 122 Stat. 2628 (2008); Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, Pub. L. No. 110-293, 122 Stat. 2918 (2008); Breast Cancer and Environmental Research Act of 2008, Pub. L. No. 110-354, 122 Stat. 3984 (2008); Paul D. Wellstone Muscular Dystrophy Community Assistance, Research, and Education Amendments Act of 2008, Pub. L. No. 110-361, 122 Stat. 4010 (2008); ALS Registry Act, Pub. L. No. 110-373, 122 Stat. 4047 (2008); Prenatally and Postnatally Diagnosed Conditions Awareness Act, Pub. L. No. 110-374, 122 Stat. 4051 (2008); Comprehensive Tuberculosis Elimination Act, Pub. L. No. 110-392, 122 Stat. 4195 (2008). See Appendix A. for an explanation of how these numbers were derived.
Chapter 7 – “Accomplishments”
40. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010); Transportation, Treasury, Housing and Urban Development, The Judiciary, The District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396 (2005). Transportation, Treasury, Housing and Urban Development, The Judiciary, The District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396 (2005).
Chapter 8 – Crisis: An Opportunity to Waste
42. See “Early Tests Pin Toyota Accidents on Drivers,” by Mike Ramsey and Kate Linebaugh, The Wall Street Journal, July 13, 2010
43. Motor Vehicle Safety Act of 2010, H.R. 5381, 111th Cong. (2010), ordered reported on May 26, 2010. H. Rep. No. 111-536 (2010).
44. “No Dead Zones Observed or Expected as Part of BP Deepwater Horizon Oil Spill,” NOAA press release, September 7, 2010
46. On October 12, 2010, the Administration lifted the moratorium, but the oil industry expressed concern that it might be continued as a practical matter because of permitting delays. See “API Pleased with Moratorium Lift, But Concerned about De Facto Ban,” American Petroleum Institute press release, October 12, 2010.
More broadly, both parties and all congressional committees fall victim to the urge to legislate before all the facts are in about a perceived crisis. The House Energy and Commerce Committee just happens to have provided two good recent examples. With regard to the long term damage of the drilling moratorium, see Chapter 18 below.
47. See video of Mr. Emanuel’s comment on YouTube: “Rahm Emanuel on the Opportunities of Crisis”
49. See 123 Stat. at 208. At the time, this provision caused controversy because critics charged that despite the facial neutrality of the language, Senate Majority Leader Harry Reid of Nevada inserted the provision to fund a Las Vegas to Los Angeles high speed train. Whatever the merits of that charge, it is beside the point here.
Chapter 9 – Third Rails
52. “Palin vs. Obama: Death Panels,” FactCheck.org, August 14, 2009
53. Former House Ways and Means Chairman Rep. Dan Rostenkowski being chased to his car by senior citizens angry over another Medicare reform: “‘Buried In The Archives,’ The Original Town-Hall Battle,” CBS News, August 10, 2009.
54. See Executive Order 13531 — National Commission on Fiscal Responsibility and Reform, 75 FR 7927, February 18, 2010.
Part II. How to Fix Congress
Chapter 10 – Temporary Duty
56. See Rule XXV, Rules of the United States House of Representatives (55-page PDF ); Rule XXXVI, Rules of the United States Senate
52. In 2010, members earned an annual salary of $174,000 and received the full panoply of federal government employment benefits. In the First Congress in 1789, they made $6 per day. As late as 1990, they made less than $100,000 per year. See CongressPay.com.
But the absolute numbers are somewhat misleading.
George Washington was paid a salary of $25,000 a year from 1789 to 1797 as the first president of the United States. The current salary of the president has recently been doubled to $400,000, to go with a $50,000 expense account, a generous pension and several other benefits. Has the remuneration improved?
Making a comparison using the CPI for 1790 shows that $25,000 corresponds to over $585,000 today, so the recent raise means current presidents have an equal command over consumer goods as the Father of the Country.
When comparing Washington’s salary to an unskilled worker, or the measure of average income, GDP per capita, then the comparable numbers are $11 and $24 million. Granted that would not put him in the ranks of the top 25 executives today that make over $200 million. It would, however, be many times more than any elected official in this country is paid today. Finally, to show the “economic power” of his wage, we see that his salary as a share of GDP would rank him equivalent to $1.8 billion.
Chapter 11 – All Cards on the Table
58. The facts, including the “bribe menu,” are described in the Justice Department’s Sentencing Memo available at:
59. The facts, including the “bribe menu,” are described in the Justice Department’s Sentencing Memo in “United States v. Randall Harold (“Duke”) Cunningham, Government’s Sentencing Memorandum, February 17, 2006” (35-page PDF ) (Criminal Case No. 05cr2137-LAB in U.S. District Court , Southern District of California). (Also at https://hobnobblog.com/wordpress/wp-content/uploads/2010/10/DukeCunningham_SentnecingMemo_Feb172006.pdf (35-page PDF ).)
60. See “Congressman William Jefferson Indicted On Bribery, Racketeering, Money Laundering, Obstruction of Justice, and Related Charges,” Dept. of Justice Press Release, June 4, 2007.
61. For more on the required disclaimers, see “Federal Election Campaign Guide: Congressional Candidates and Committees,” Chapter 10 Conducting the Campaign (April 2008) (186-page PDF ).
Likewise, whether certain advertising is unregulated issue advocacy or regulated express advocacy turns on the use of certain “magic words” like “vote for,” “elect,” etc. See Buckley v. Valeo, 424 U.S. 1, 44 n. 52 (1976) (oral arguments on Oyez).
62. See generally Virginia Campaign Finance Disclosure (CFDA), Virginia State Board of Elections. According to NCSL, nine other states have similar laws; see “State Limits on Contributions to Candidates, Updated January 20, 2010” (13-page PDF ). (Also at https://hobnobblog.com/wordpress/wp-content/uploads/2010/10/NCSLA_limits_candidates.pdf (13-page PDF ).
Chapter 12 – Back to Reality
63. The author spent more than a decade of his life as a congressional staffer, and the argument here and in the next chapter, Chapter 13, is not a criticism of congressional staffers. The vast majority are dedicated public servants who toil away in obscurity for less money than they could make in the private sector. Rather, the concern is that their sheer numbers insulate members from reality and enable them to delve into more subjects than they can reasonably handle. See Committee on House Administration, Member’s Handbook, Section 3: Staff; and “Legislative Branch Staffing, 1954-2007,” by R. Eric Petersen, CRS Report for Congress R40056, October 15, 2008 (16-page PDF ).
Chapter 13 – Focus, Focus, Focus
64. See, e.g., N.C. Gen.Stat. § 163-278.13B(c); Tex. Election Code § 253.034. Twenty-eight state legislatures have a full or partial ban on campaign contributions while they are in session. See “Limits on Contributions During the Legislative Session,” NCSL.
65. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999).
Chapter 14 – Reading is Fundamental
67. “I love these members that get up and say, ‘Read the bill!’ Well, what good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you’ve read the bill?” Rep. John Conyers, Jr., on reading the 2010 health care reform bill. Video: “John Conyers on Reading the Healthcare Bill.”
68. “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language. We hire experts.” Sen. Max Baucus, on reading the 2010 health care reform bill. “Libby Residents Relate Gains, Drawbacks of Asbestos Aid,” by Dan Testa, (Kalispell, MT) Flathead Beacon, August 24, 2010.
69. House Speaker Nancy Pelosi: “But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” Press Release: “Pelosi Remarks at the 2010 Legislative Conference for National Association of Counties,” March 9, 2010. (Also available as 3-page PDF and as a 6-page PDF ).
70. These figures do not include joint resolutions, concurrent resolutions, or simple resolutions. For more on these types of legislation, see Congressional Deskbook, §§ 11.20, 11.30. For an explanation of how these numbers were derived, see Appendix A.
71. H.R. 946: Plain Writing Act of 2010, Pub. L. No. 111-274, ___ Stat. ___ (2010). Prior to the passage of H.R. 946 (2010), efforts to get members of the executive branch to use plain English had gone on for a number of years, but they had been somewhat sporadic. See “A History of Plain Language in the United States Government (2004),” by Joanne Locke, PlainLanguage.gov. President Clinton signed a memorandum encouraging the use of plain English in the executive branch in 1998, “Executive Memorandum of June 1, 1998–Plain Language in Government Writing,” Federal Register Volume 63, Number 111, FR Doc No: 98-15700.
72. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
73. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010).
Chapter 15 – A Purpose-Driven Minority
76. Rule XV, Clause 1, Rules of the United States House of Representatives (55-page PDF ).
Chapter 16 – The Committee on Repeals
78. Sometimes Congress appropriates funds for a particular purpose and then they are not spent for one reason or another. This money then stays in the agency and is often spent for some other purpose with the approval of the congressional appropriators. The money is known as an unobligated balance and the process is known as reprogramming. For more on these matters, see Congressional Deskbook, § 9.140 Transfer and Reprogramming.
79. Rule XII, Clause 2, Rules of the United States House of Representatives (55-page PDF ).
81. For more on how bills are referred to committees in the House and Senate, see Congressional Deskbook, § 8.30 Referral of Legislation to Committee.
82. For more information on the Texas process, see the Texas Sunset Advisory Commission’s website at: <www.sunset.state.tx.us>. Interestingly, several members from Texas have introduced bills to bring this concept to the federal government. See “Federal Sunset Act of 2009,” H.R. 393, 111th Cong. (2009) (introduced by Rep. Kevin Brady); “Responsible Government Empowerment Act of 2009,” H.R. 534, 111th Cong. (2009) (introduced by Rep. Randy Neugebauer); “Spending, Deficit, and Debt Control Act of 2009,” H.R. 3964, 111th Cong. (2009) (introduced by Rep. Jeb Hensarling); and “United States Authorization and Sunset Commission Act of 2009,” S. 926, 111th Cong. (2009) (introduced by Sen. John Cornyn).
B. Solutions Specific to the Senate
Chapter 17 – Just Do It
84. For more on these topics, see Congressional Deskbook, §§ 8.190, 8.200, 8.210, 8.230.
85. For more on how the Founders viewed the role of the Senate, see Federalist Papers No. 63.
86. See Rule XXII, Paragraph 2, Rules of the United States Senate. During 2010, the Senate Rules Committee held a series of hearings to examine the filibuster and related rules and practices. These hearings are available at: http://rules.senate.gov/public/index.cfm?p=CommitteeHearings.
88. S. Res. 502: A resolution eliminating secret Senate holds (111th Congress) (2010).
Chapter 18 – Hurry Up and Wait
89. Just after each presidential election, Congress publishes a document entitled “United States Government Policy and Supporting Positions” that enumerates the various non-civil service jobs in the executive branch. This document is commonly known as the Plum Book, both because of the color of its cover and its contents. The most recent version is available online at: <www.gpoaccess.gov/plumbook/>.
90. For more information on the federal judiciary, see the website of the Federal Judicial Center, <www.fjc.gov>.
91. For example, the 200-page questionnaire filled out by Supreme Court Justice Elena Kagan can be viewed on Scribd: ElenaKagan-PublicQuestionnaire.
92. Senator Landrieu’s statements on this matter are available online: “Landrieu Maintains Hold on OMB Nominee,” Press Release, Sen. Mary Landrieu,September 29, 2010 (also here as 1-page PDF ); and letter from Senator Landrieu to Majority Leader Harry Reid, September 23, 2010 (also here) (2-page PDF ).
93. “Landrieu Responds to Obama Administration Decision to Lift Deepwater Drilling Moratorium,” Press Release, October 12, 2010 (also available as a 1-page PDF ).
94. See Rule XXII, Paragraph 2, Rules of the United States Senate.
95. In the debates over ratification of the Constitution, the Founders did not seem to contemplate the possibility of the interminable delays inherent in today’s confirmation process. See Federalist Papers No. 76. They seemed to think that the threat to the President’s nominees would be defeat in a confirmation vote – not death by never having a vote.
C. Solutions Specific to the House
Chapter 19 – Be It Ever So Humble
99. See the website of the Clerk of the House for more detailed information on this growth: <http://clerk.house.gov/art_history/house_history/congApp/>. Interestingly, during the debates on the Constitution, there was great concern that Congress would not increase the number of representatives as the population increased. See Federalist Papers Nos. 55, 56, and 58.
100. In 1911, Congress passed a law capping the number of House members at 435, and it has remained there since that time. Pub. L. No. 62-5, §§ 1-2, 37 Stat. 13-14 (1911). See <http://clerk.house.gov/member_info/memberfaq.html>.
103. See H.R. 3972, the “Congress 2014 Commission Act,” 111th Congress (2010).
104. For more on members championing causes, see Persuading Congress, Chapter 30.
106. The United States Census Bureau projects that minorities will make up a majority of the U.S. population by 2042. “An Older and More Diverse Nation by Midcentury,” Press Release, U.S. Census Bureau, August 14, 2008.
107. For more on reapportionment and redistricting, see Congressional Deskbook, §§ 2.10, 2.13.
Chapter 20 – Other People’s Money
108. Pub. L. No. 93-344, 88 Stat. 297 (1974) (codified at 2 U.S.C. §§ 601–688).
111. See, for example, the “Biennial Budgeting and Appropriations Act,” S. 169, 111th Cong. (2009).
114. For more on earmarks, see Lobbying and Advocacy, §§ 4.29, 4.30.
Conclusion – Solutions, Solutions Everywhere, But…