Energy in the Legislature
by Philip A. Wallach
The Vanishing Congress: Reflections on Politics in Washington is a curious hybrid. It is variously a primer on Congress’s constitutional duties, a scholarly (though note-less) consideration of how it has changed in recent decades, a textbook on the realities of policymaking and budget process, and a sifting of reform proposals. This mixed product emanates from the long, revolving-door career of Jeff Bergner, a political theorist who has served as chief of staff to Richard Lugar (R-Ind.) (who passed away recently at the age of 87), staff director of the Senate Foreign Relations Committee, and Assistant Secretary of State during the George W. Bush administration. Bergner has also lobbied Congress. This gives him ample opportunity to consider government from the outside in, as does his academic training in political philosophy.
Looking back over his professional life, the author offers an impressionistic memoir seasoned with his considered judgments about a wide range of subjects. Bergner defends the informational and social benefits of congressional junkets. He is against over-classification. He questions the efficacy of economic sanctions. He thinks the deep state is real, and worrisome. He relates many a charming anecdote, and a few wince-inducing ones. He sometimes indulges his cynical side and invokes the ghosts of Jonathan Swift and H.L. Mencken in questioning whether we can expect anything better, given the state of the electorate—though he lacks the necessary venom to carry this off convincingly. All this makes for a good, if meandering, read steeped in its author’s irreverent, wry, but ultimately hopeful sensibility.
Unaccountable Poseurs
But if Bergner is far less focused on making an argument than most authors, he nevertheless does advance a thesis to flesh out the promise of his title: He thinks that Congress has deprived itself of the ability to function effectively in favor of allowing members to vindicate their supposed “rights,” which are nowhere guaranteed to them. The “complex labyrinthine procedures which Congress has imposed on itself” serve members’ own selfish interests, mainly through allowing them to posture unaccountably.
As Bergner sees it, America’s legislative leaders are not possessed of any special sagacity or moral sense. What they are good at is “presenting themselves in a favorable light,” which has led them to refine the arts of blame-deflection, strategic obscurantism, and two-facedness. Complexity provides the field on which their tactics thrive. For example, senators can vote one way on cloture but another on the merits, enabling them to say they “actually” voted for the bill before they voted against it.
Bergner’s contempt for such chicanery leads him to endorse a number of reforms that are widely popular at this point. He is for ditching the filibuster for legislation and congratulates the last two Senate majority leaders for removing obstacles to confirming nominations, a process which he hopes will continue apace. He casually asserts that changing the vote threshold for nominees will make little difference: “Since most of these nominees are eventually confirmed anyway, there is little to be lost here except delay.” But is it plausible to believe that the same nominees pushed through on bare majority confirmations would even have been submitted if they were up against 60-vote requirements?
He also favors a radical overhaul of the budget, authorization, and appropriations process (as some Republican members have recently called for), seeing the confusing relationship between these three functions as a source of mischief and wishing for consolidation. And he rues leadership’s tendency to sweep in at the last minute to fashion must-pass legislation in their own offices, again lamenting the way that this renders so much committee effort superfluous (and therefore useful only for posturing).
Cut Back on Staffing?
In one area, Bergner’s preference for simplicity leads him to take a position diametrically opposed to the common view of contemporary congressional reformers: He would like to see a significant reduction in the number of congressional aides. Although he concedes the appeal of saying that Congress needs to “defend itself against the executive branch” by upping its levels of staffing, Bergner thinks the attempt to compete through the accumulation of personnel is ultimately self-harming. Government may be more complex—but he avers that “the solution to complexity is not to create more complexity. Nor is the solution to specialization to create even more specialization.” Instead, in his view, bulking up on staff merely exacerbates complexity and diminishes focus. “Congressional staff are behind the enormous rise in bills which are introduced but which never pass,” Bergner says. Yet again, he sees an institution maximizing opportunities for posturing rather than pursuing the public good, which is far more difficult to do.
It is tempting to sign on to this agenda—after all, who is against doing more with less? But Bergner’s conversational tone and decision to eschew rigorous citations serves him poorly here. According to the Brookings Institution’s Vital Statistics on Congress (Chapter 6), there has been no particular trend in the number of bills introduced in recent years. If we go back as far as the early 1970s, bill introductions in the House of Representatives are actually much reduced. Members in recent years have introduced, on average, only half or a third as many bills as their counterparts from those days. The trend in the Senate is less pronounced, but in the same direction.
It may feel obvious to Bergner that cutting staff by 20 percent would lead to a Congress that is 20 percent more productive, but he fails to note that we have already made this experiment. Turning to Brookings Vital Statistics again (Chapter 5), we can see that the House trimmed its staff from more than 11,000 in the late 1980s down to less than 8,000 recently. Again, the Senate’s change runs in the same direction, though less starkly—from a high of around 6,700 in the 1990s to a level of around 5,800 more recently. It’s healthy for Bergner to question easy “more is better” logic when it comes to congressional resources, but given the fact that he is unhappy with Congress’s “vanishing” tendency during a period when its staff has actually been shrinking, one fears that he is simply indulging in an opposite supposition just as breezy.
Rather than less or more, discussions of congressional resources are better centered on questions of institutional balance and priorities. Staff today is more concentrated in personal offices and leadership, with committees having been thinned out. Communications functions have swollen at the expense of policy. These changes reflect deeper institutional shifts of power, and perhaps also the changed political environment, but they nevertheless play into Bergner’s worry of elected officials more concerned with appearances than actions. Reformers should squarely target these trends by offering reforms designed to enhance Congress’s powers of mastering complex information, rather than amplifying complexity or diffusing institutional attention without effectively engaging.
A Glimpse into the Legislative “Sausage-Making”
If The Vanishing Congress’s style leaves some of its argumentation too thin, it is not without compensating benefits. The glimpses of a high-level committee staffer’s regular working life are priceless—and what is interesting is that they actually show the institution in a better light than Bergner lets on.
One of his anecdotes features a senior legislator who called the Foreign Relations Committee’s staff ahead of a bill markup. He kept insisting that he wanted to offer an amendment, while declining to say what it would contain. Bergner relates:
I guess I was rather slow on the uptake, but it gradually dawned on me: the Senator wanted to offer an amendment, any amendment, and he didn’t much care what it was. He wanted to be seen as an engaged, effective legislator, no doubt to offer his constituents back home a glowing report of the good work he was doing on their behalf. He wanted us to provide an amendment for him to offer.
After overcoming his surprise, Bergner was ready to offer a suggestion, one that his own boss had failed to heed in the initial drafting process. At the markup, the senator dutifully introduced the amendment, Chairman Lugar appreciatively accepted it, and the provision thus added eventually became law.
Bergner seems a little embarrassed by this story, on behalf of everyone involved. The solicitous member was without his own thoughts; the chairman accepted in markup what he had spurned in drafting; the staffer, Bergner, was operating through a kind of misdirection. But it hardly seems obvious that this was an institution malfunctioning. The member was placing his trust in Bergner as a way of finding something worthy to contribute, and was acting on the advice he received from a seasoned legislative aide. Chairman Lugar’s way of listening opened up at the hearing. Bergner played the system, true, but in pursuit of what he believed was a genuinely worthy bit of legislation.
All in all, a fine performance!
Another story strikes me the same way. Bergner was working with Senate Majority Leader Robert Dole (R-Kan.) to schedule floor debate on a complicated bill that the Foreign Relations Committee had reported. When Dole asked how long it would take to debate amendments to the bill, Bergner told him two days even though he worried it would actually be longer. When, late on the second day, Bergner told the Majority Leader that the overall number of amendments remaining had failed to drop—with as many new ones offered as had been dealt with—Dole “took the news in stride, predicting that the later the hour, the less important many of these earth-shaking amendments would seem to their sponsors. Not to mention their colleagues. . . . Senator Dole was correct, as usual, and we finished the bill that evening.”
Bergner drops this conclusion without commentary, but perhaps he means it as a mild indictment of the process. Should the final substance of a bill really be determined by anything so arbitrary as which senators most wanted to get home to bed one evening?
Maybe it should. This is an instance of what my colleague James Wallner calls the politics of effort. Especially in the Senate, institutional rules and structure are designed to figure out what is really important. The participants themselves can’t be sure of whose preferences are most intense in advance, since trying to ascertain such information through conflict-free verbal declarations would elicit nothing but hot air. But attempting to wring out a compromise among members with scarce time and energy has a way of clarifying the situation. When three members decide that their statutory change isn’t worth staying up for, and a fourth persists even at the risk of angering his colleagues, the system has revealed valuable information.
This is a decidedly human form of decision-making—perhaps embarrassingly so, when subjected to our more analytical tendencies. If this frank and subtlebook has one overriding lesson, it is that, for better and for worse, the whole enterprise of representative government is a thoroughly human affair. That may be deflating to those who would puff up government as somehow transcendent or sublime. For the rest of us, a clear view of a Congress peopled by Doles and Bergners ends up not seeming so very discouraging. May that body never vanish.
