Embrace the Unorthodox to Improve Deliberations on Capitol Hill

February 14, 2020 by Dan McCue
Rep. Derek Kilmer, D-Wash., at a recent meeting of the Select Committee on the Modernization of Congress. (Photo by Dan McCue)

WASHINGTON — A trio of experts has told a Select Committee tasked with improving how Congress functions to forget harkening back to an earlier era and instead embrace methods of deliberation better suited to our times.

Meeting in the Cannon House Office building last week, the Select Committee on the Modernization of Congress, sought advice on how to foster a more deliberative process for making laws and otherwise doing the people’s business.

It was the second hearing this year at which the panel explored the ways Congress is failing to fulfill its constitutional obligations, and how that effects legislating.

During the session, Dr. Norman Ornstein, resident scholar at the American Enterprise Institute, advised the panel to dispense with the current format of committee hearings which he called an “anachronism.”

In Ornstien’s view, congressional committees and subcommittees have “clung stubbornly” to a “tried-and-true” format in which members are arrayed around the dais, witnesses at the table below, and opening statements by the chair and ranking member are followed by witness testimony and questions.

“There are certainly hearings where this format works reasonably well,” he admitted, “But as a forum for … doing serious oversight … or examining a major national or regional problem … hearings are far too disjointed, with lines of questioning intermittent, interrupted, combative and confusing.”

Ornstein said committees should alter their rules to encourage the use of varying formats of hearings and debate.

As an example, he spoke of a format in which opening statements are followed by 30-minutes of testimony by each side’s subject matter experts, which would then be followed by rounds of questions.

Such an approach, he said, would provide “an incentive for a group to convene in advance, settle on a theme for questions, and pursue that theme, including relevant follow-ups.”

Ornstein also suggested conducting committee hearings in a roundtable format, creating more collaboration and face-to-face interaction, and holding weekly “Oxford-style” debates between members on significant issues facing the nation.

“There could be two or three members on each side to offer contrasting views and ideas for policy, with rebuttals, in a classic debate format,” he said.

Ornstein went on to suggest the issue debates be chosen by a bipartisan leadership panel, and that each debate team include members of both parties.

Smiling, he later added, such debates could become a popular weekly television show.

Dr. Carolyn Lujensmeyer, an advisor to Clinton White House chief of staff Mack McLarty and executive director emerita of the National Institute for Civil Discourse, placed most of the blame for today’s dysfunction and hyper-partisanship on “the preponderance of gerrymandering,” “the insidious effects of our 24-7 news cycle,” and the “fundamentally changed information ecosystem.”

“All of these are beyond the scope of this committee to address,” she said.

But Lujensmeyer said she did believe there are “structural and systematic changes” that can be made on the micro-level that will help lead to richer and more productive discourse between lawmakers.

Like Ornstein, she embraced the concept of doing away with the dais and perhaps holding more roundtable-style meetings.

She also liked the idea of pre-hearing meetings at which members could “get at what is most crucial to come out of the upcoming session and how best to get at that information.”

Lujensmeyer also advocated for annual off-site retreats, skills training in speaking and listening for all incoming members of Congress, and bipartisan seating charts in hearing and committee rooms to allow members of each party to interact on a more personal level.

She went on to say that the natural extension of bipartisan seating would be for members to travel to the districts of their counterparts in the other political party “to get a sense of what issues are important to them and why.”

But perhaps the deepest dive on the issue came from Dr. James Curry, associate professor and director of Graduate Studies in the Department of Political Science at the University of Utah.

Curry and Frances E. Lee, professor in the Department of Politics and the Woodrow Wilson School of Public Affairs at Princeton University, are the authors of “The Limits of Party,” which will be published later this year by the University of Chicago Press.

The book, which Curry said draws on in-depth interviews with long-time members of Congress and high-level congressional staffers, explores the issue of when and why Congress sidesteps its norms and instead turns to the unorthodox to get its work done.

Curry told the committee that he understands proposals “to turn back the clock” are appealing because they imply a return “to less partisan and tumultuous times.”

In the same breath, however, he said such an approach would be misguided.

“There is little evidence that the move away from the regular order of the past caused the ‘problems’ many identify,” he said.

“There is even less evidence that a return to regular order would resolve those perceived problems,” he added.

Curry defined “regular order” as a time when Congress adhered to a formal, sequential process with committees playing the central role, and with relatively open floor consideration of legislation.

“With regular order, a heavy emphasis is placed on policy development happening in committee, with committees holding hearings on legislation and considering, debating, and amending legislation in open and freewheeling mark-ups,” he said.

“Moreover, under regular order, legislation is only considered on the floor of the House after it has been marked up and reported (favorably) by a committee, and floor processes are expected to be open, with wide-ranging debate and open amending procedures,” he added.

In recent years, that process has changed, with more decision-making authority being in the hands of party leaders, bypassing traditional committee processes, closing down opportunities for debate and amendment on the floor, and moving legislative negotiations behind the scenes.

Throughout his testimony, Curry challenged popular assumptions about what these changes have done to Congress.

For instance, he said, while many people talk about congressional “gridlock,” serious analysis shows that the amount of substantive legislation enacted by Congress has not changed much over the years.

He also rejected the notion that the old way of doing business fostered bipartisanship while the new way does not.

“This theory casts centralized and unorthodox processes as tools of partisan majorities, used to ram through partisan laws,” he said. “However, the evidence backing these claims is nonexistent.”

To illustrate his point, Curry pointed to the Affordable Care Act, which generally followed a traditional committee process — being subject to 30 congressional hearings during the 111th Congress — but failed to garner any bipartisan support.

The Dodd-Frank Wall Street reform act similarly was the subject of over 80 congressional hearings during the 111th Congress and was marked up by committees in both the House and Senate. But Dodd-Frank also failed to gain bipartisan support, even in its early stages, he said.

“Meanwhile, many bills considered under unorthodox processes reflect bipartisan deal-making and pass on broadly bipartisan votes,” he said. “For example, nearly every omnibus spending deal to avert a government shutdown in recent years was negotiated behind the scenes among a smaller number of key legislators in each party, and each one passed with a bipartisan majority.”

The lesson, he said, is that “unorthodox processes help deliberations and negotiations because they can move negotiations out of the view of cameras and lobbyists … and help lawmakers find common ground and compromise because they are able to share their perspectives candidly.”

Today, lawmakers find it difficult to engage in give-and-take when issues “get tribalized in the media,” and exploratory offers can be interpreted as capitulations.

“Complete and total transparency makes it very hard to negotiate and have conversations,” the professor said, quoting a Capitol Hill staffer.

Instead, Curry told the lawmakers, they should look to and embrace policies that minimize opportunities for obstructionist tactics; enable legislators and key negotiations to speak openly and freely with each other; reduce incentives for legislators to play to cameras; and avoid  unnecessarily limiting the politics and issues open to negotiators.

In terms of specific reforms, Curry suggested banning roll call votes in committee, eliminating the incentive for legislators to offer amendments solely to score political points.

He also strongly endorsed creating more opportunities for members of Congress to engage with each other in settings where they do not feel pressure to play to the cameras.

“One possibility is to create more processes by which committees get together just to discuss, debate, or learn more about specific issues, policies, and federal programs,” he said. “Simply, taking committee members out of Washington to learn more about specific domestic policies together in bipartisan groups could engender substantive deliberations, debates, and even the building of the kind of relationships and trust often needed among members of Congress for sensitive policy negotiations.

“The House could also consider organizing these trips around working groups, issue caucuses, and other entities that do not necessarily conform to committee jurisdictions or limit participation to committee members. Since controversial issues often span multiple committee jurisdictions anyway, getting members to think outside committee boundaries as they engage in these deliberations may also be fruitful,” Curry said.

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