Institutional Memory, Design & Congress: Analyzing the ambiguity of Article I and the influence of rules, procedures, and leadership on the functionality of Congress
Kelsey Price POLS 3110 James Curry Legislative Process Fall 2012
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Institutional Memory, Design & Congress: Analyzing the ambiguity of Article I and the influence of rules, procedures, and leadership on the functionality of Congress
Americans’ approval of Congress is at a critical and disastrous all-time low that reflects a general public consensus that Congress is not functioning properly. An August 2012 Gallup poll indicated that only ten percent of Americans approve of the job Congress is doing, a new all-time lowest measure of approval in Gallup’s forty year history(Gallup). Understandably, many common frustrations of the American public with Congress are a fair assessment, such as a lack of bipartisanship, are valid, while other claims, such as corruption, exist but are often hyperbolic. Critics of modern Congress often cite the Federalist Papers or historical documents as proof of the Founding Fathers would view the modern functioning of Congress as proof of Congressional design failure. However, through analyzing the Constitutional design within Article I itself, institutional memory and structure, as well as current functionality and structure, it is evident that Congressional institutional design within the Constitution itself is designed to be adaptive to Congress in a similar mean as the House of Representatives was intended to be responsive to the will of the people. Indeed, the modern structure and function of Congress exists due to adaptations and changes over time that are attributable to the Constitution and its design of Congress. Constitutional design does not explicitly help or hinder the ability of Congress to affect public policy, rather the ambiguity of the original institutional design has allowed the modern rules and structures, such as committees and party leadership, to create an institutional
Price 3 memory that limits the ability of Congress to efficiently influence public policy. In evaluating modern Congress, the physical text of the Constitution itself, particularly after taking into Marshall’s concept of a living Constitution, is reflective of modern constitutional design, but not necessarily the functionality thereof. Through the assessment of modern Congress, institutional memory and culture play a far more significant role than the institutional design.
Defining Constitutional Design & Structure The United States Constitution, although it concisely defines Congressional power and limits, is largely ambiguous in terms of Congressional structure apart from Congressional apportionment and the bicameral system. While the powers and functions of Congress are found throughout the Constitution, Article I most thoroughly expounds upon the institutional design and function of Congress, with the most critical enumerated powers listed in Article I, Section 8. In addition to granting Congress the power to make laws, establishing the body as the primary law and policy maker (with the exception to make treaties), the design elements of Congress, such as bicameralism, election qualifications, and bill voting are in Article I, sections 1, 2-3, and 7, respectively. However, the most crucial section in terms of explaining the development of modern Congressional function is Section 5, particularly regarding the establishment of Congressional Rules. Section 5 establishes that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member” (U.S. Const.). In granting each Chamber the discretion to set rules the section sets the stage for the development of the modern function and proceedings of Congress. While Article I is the physical design of the Constitution, equally crucial in understanding the design of Congress is the intent. John Marshall explains in the Supreme Court’s design in
Price 4 McCulloch v. Maryland that the Constitution, and therefore by extension Congressional design, as “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs� (17 U.S. 316). Such an idea of a living Constitution is the primary basis for modern understanding of the intent of Constitutional design. Indeed the second Secretary of State, Edmund Randolph explained the importance of intent in drafting the Constitution to be two-fold, stating: In the draught of a fundamental constitution, two things deserve attention: 1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and 2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states. (Randolph) In addition to statements from the Federal Convention of 1787, modern understanding of Founding Fathers’ designed Congress and how Congress was designed to function is largely drawn form the Constitution itself as well as The Federalist Papers. Authored under the penname of Publius by James Madison, Alexander Hamilton, and John Jay the papers, which are a series of essays supporting ratification of Constitution, are the best-known documentation of logic behind the institutional design of Congress within the Constitution. The series of essays address the House and Senate design in papers 52-62. As a whole, the Constitutional framers sought to create a lawmaking body where the will and passions of the population, reflected through frequent House of Representatives elections, was balanced by the foresight and wisdom of the Senate.
Price 5 Arguably, Federalist Paper No. 57 presents the largest dilemma in addressing whether or not Congress functions properly as designed. In noting that the principle aim of the Constitution is “…or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust” (Madison). Often citing similar statements within the Federalist Papers to support claims of an improperly functioning Congress, many academics, scholars, and members of public contend that current members of Congress are not working towards the common good of society, as evidenced by recent filibusters, or the looming fiscal cliff. However, while the Federalist Papers provide evidence to explain the rationale for the constitutional design of Congress or why the New Jersey and Virginia Plans were merged to create a legislative body that features both proportional and equal representation, the essays are not equivalent measures of the constitutional design to the Constitution itself. Apart from the bicameral structure and with the exception of Section 7, which details revenue bills for raising revenue must originate from the House and that both chambers must past a bill before the president may sign it into law, Article I of the Constitution does little to establish the formals rules of the Congress. In granting both chambers discretionary powers to set their own rules in Section 5, the Constitution creates a Congress whose functionality and efficiently is based on rules establishment, not the institutional structure specified in Congress. Elaine K. Swift notes that the evolution of Congress and the functionality thereof by instances of “rapid, marked, and enduring shift[s] in the fundamental dimensions of the institution” (Swift, 5).
Price 6 Furthermore, in addition to the rules of Congress, which have created an institutional memory and culture distinct and separate from the Constitution, Congress is subject to other factors that impact its functionality, such as partisanship, leadership styles, and institutional changes. To a large extent, many of these factors result from procedural changes and shifts in institutional culture. For example, Congressional workload is significantly larger than 1789. In addition to a dramatic increase in the number of bills and joint resolutions, by most measures of workload, including hours in session, committee meetings, and floor votes, doubled between 1950 and 1970 alone and continues to rise (Davidson, Oleszek, and Lee, 29).
Rules, Procedure and Congressional Institutional Memory The rules and procedure of Congress not specified in the design laid out in the Constitution create both an institutional memory and culture distinctly different from the design of Congress. Institutional, also known as organizational memory, is an organization’s comprehensive collection of data, information, knowledge and other experiences and how an organization applies the set of knowledge to accomplish goals and set policies for current and future use. Huber further explains organizational memory exists “... to demonstrate or use learning, that which has been learned must be stored in memory and then brought forth from memory; both the demonstrability and utility of learning depend on the effectiveness of the organisation's memory” (Huber, 88). The organizational memory of Congress is separate from design or the Constitutional structure, and rather the learned behaviors of how members of Congress work within their routines and Congressional procedure. Indeed, Levitt and March note that factors that hinder an organization’s ability to function include the “…beliefs, frameworks, paradigms, codes, cultures, and knowledge that buttress, elaborate, and contradict formal
Price 7 routines� (Levitt and March, 320). In a very real sense, the Constitution can be viewed as the formal routine of Congress, while the rules and daily procedures, including elements such as unorthodox lawmaking, create a structure such as proposed by Levitt and March that affect Congress’ ability to affect public policy, despite Constitutional design. The importance of Congressional rules in procedure in functionality cannot be understated. Even in the first parliamentary manual, Thomas Jefferson noted that the rules of Congress are the foundation for order, decency, and regularity necessary for a public body and institution to function (Davidson, Oleszek, and Lee, 215). Rules can be redefined and altered, and used on a strategically level to remove individual power or block actions in either chamber as well, creating an institution were the ability to pass legislation is often contingent on leadership and the rules committees. For example, Conference Rule 28 allows members of Congress belong to both parties to take down or manipulate the timeline of bill considerations (ibid). While most textbooks on American institutions and government describe Congressional procedure as straightforward, the reality is procedure and the process in which bills become law is increasingly more complex and unorthodox. Frequent or dramatic rule changes strongly affect the function of Congress. For example, the multiple referrals, measures referred to more than one committee, have undergone significant institutional changes in the past 35 years. Traditionally, initial House rules did not stipulate any provisions regarding whether or not a bill, when introduced, could be introduced to more than one committee. However, in 1975 changes permitted numerous multiple referrals, which increased the Speaker’s ability to regulate referrals and granted considerable authority to refer measures to multiple committees (Davidson, Oleszek,
Price 8 and Lee, 197). However, this change in procedure led to too expansive authority of the Speaker regarding referrals without time restrictions on how long measures were considered. Later, in the beginning of the 104th Congress, changes to the referral rule (Rule X, clause 5) sought to limit multiple referrals as to rectify too much centralized power in the referral process (Mulvihill). The revisions allows the Speaker to retain considerable flexibility in directing how and where measures are received by committees, and set deadlines on committee reporting on a specific measure. However, another consequence with the procedural rule change is that the Speaker can delay action on legislation by using multiple referrals to slow the decision making process and essentially ensure a bill does not reach the Floor (Davidson, Oleszek, and Lee, 198).
Czar Rule and Speaker Power Leadership style and leadership power, which influence how Congress operates on an institutional level, but not design level, also impacts how Congress functions. Leaders in Congress who possess certain traits are often more likely to have a significant impact on policy making than other members of Congress or even other leaders. Caro and Starhan both emphasis in their respective research that a Speaker, Majority or Minority Leader must possess qualities such as an ability to manipulate the chamber’s rules, gain the support from members of the opposing party, etc. allow leaders to transcend past the institutional culture and pass transformative legislation (Caro, 519-684; Strahan). Cooper and Brady also propose that Congressional leaders’ success is often determined by institutional context, including memory and culture, as opposed to the physical design of Congress. More so than physical design of Congress, the historical narrative of Congressional
Price 9 leadership, which is marked by a transition form a hierarchical pattern to bargaining pattern in leadership styles, continues to define today’s Congress functionality. Before the twentieth century, the institutional context and memory of the House was defined by Speaker, who held centralized power and control over rules, but power has dramatically shifted to a more partisanbased focus that is not accounted for in the Constitutional design of Congress. From 1890 to 1910, so-called “Czar Rule” and Speaker leadership dominated the institutional culture of the House, largely in part due to their uncontested ability to appoint committees, control over the Rules Committee, ad absolution control of recognitions motions to adopt by unanimous consent or to suspend the rules (Cooper and Brady, 411-412). During the Czar Rule period, the Speaker’s formal powers combined with party strengthen resulted in a strict centralized leadership style, which originated from parties and institutional memory as opposed to the structure specified within the Constitution. As a consequence, Cooper and Brady contend that the patterns of Congress at the turn of the nineteenth century are characterized not by design, but rather that “at the turn of the century, as in all periods of our history, [bases of party strength] are largely external” as opposed to design, and, “... rooted in polarized constituency and configurations” (ibid, 415). In contrast to the Czar Rule of figures such as Reed and Canon, after a series of changes in formal powers of the Speakers that occurred from 1909-19011 resulted in a dramatic shift not only in procedure and rules, but leadership styles within the House. The House of the 1920s and 1930s, operated in a dramatically different levels and manners of function compared to today’s Congress, which is dominated by partisanship. Characterized by a seniority based hierarchy and a decline in party voting through the mid-century, Congress saw, in turn a rise in organizational independence of various party fractions and a decrease in leadership power (ibid, 417-418).
Price 10 These historical narratives established an institutional memory that saw party divisions led to changes in organizational and power structures within Congress. Fractionalization within parties during the time resulted in an increased reliance on brokerage and bargaining to pass legislation, a trend which continues to day, but has shifted from committee bargaining to party dominance.
Party Polarization and Adaptation Almost without a doubt, party polarization is also at an all-time high since the 1970s, while the amount of legislation passed has declined significantly. According to Theriault, 60 percent of members of Congress were in the middle in 1968, but in 2004 less than quarter of members fell into the middle ideological category (Theriault, Party Politics, 484). Party polarization since 1970s is three-fold is not contingent on the design of Congress, but rather adaption to adjust to shifts in politics and within Congressional procedures. On a broad spectrum the polarization can be explained through political and ideological shifts by both parties to platforms that are more distinctive from other another. Second, polarization extends beyond general shifts in ideological views of political parties, but also occurs on an individual member basis. Theriault contends that individual legislators may initially vote more moderately when first elected to Congress, but over gradual time and with each election, their records become increasingly polarized (Party Politics, 484). Lastly, members of Congress are replaced over time by members who already have more extreme ideological views than their predecessors. Gerrymandering also plays a significant role in party polarization. Through redistricting, the districts members of Congress represent are increasingly more homogenous and extreme in terms of demographic makeups, lessening the incentives of members of Congress to adopt a more moderate ideological standpoint. According to at least one study by Bill Bishop, district
Price 11 boundaries have become notably more homogenous in terms of political make-up since 1976. During the 1976 presidential race, when Jimmy Carter defeated Gerald Ford, 26.8 percent of voters lived in counties or districts where a candidate beat the other by more than 20 percent points. However, in the 2004 presidential election, 48.3 percent of voters lived in an area where a candidate won by more than 20 percentage points (Theriault, Party Polarization, 7). Indeed, University of Washington professor Bryan Jones summarizes the trend that, “Lawmakers elected from solidly safe districts have less incentive to compromise... Homogenous districts add to the polarization of the political parties� (Postman). In analyzing the impact of polarization on the functionality of Congress, the marked pattern in a decrease in overall productivity is attributable to partisanship. A negative trend in productivity reflects the decrease in the number of moderate members of Congress. In 1968, 391 laws were passed by Congress (Davis), but just 207 in the most recent session (GovTrack). Referring to what Theriault coins as member adaptation, polarization is not a result of design, but rather the trend among legislators to polarize as they become increasingly accustomed to the institutional culture and workings of Congress.
Conclusion In evaluating the design and functions of Congress, it is evident that although the Constitution is the foundation for the structure of Congress, Article I is not the sole or even primary factor in evaluating the functionality of Congress. Section 5’s ambiguity gives Congress considerable discretionary power in formulating rules and procedures, and as consequences, changes to procedural rules throughout the course of Congressional history have affected distribution of power within Congress, leading to changes within leadership style and party
Price 12 ideologies. Combined, the contextual history of Congress that has led to increased partisanship and distinct styles within Congress has created an institutional memory and culture that is paradoxical in nature. While the institutional memory of Congress is based more on external factors not specified in the original design of Congress stated by the Constitution, the changing styles of lawmaking and procedure remains, to a degree, reflective of the living nature of the Constitution. Regardless of efficiency or approval of Congress, its function is a consequence of change over time due to procedure, not structures defined within the Constitution.
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WORKS CITED 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 "Bills and Resolutions." GovTrack. Civic Impulse, LLC., n.d. Web. Dec. 2012. <http://www.govtrack.us/congress/bills/>. Caro, Robert A. Master of the Senate: The Years of Lyndon Johnson. New York: Alfred A. Knopf, 2002. 519-684. Print. Cooper, Joseph, and David W. Brady. "Institutional Context and Leadership Style: The House from Cannon to Rayburn." The American Political Science Review 75.2 (1981): 411-25. Print. Davidson, Roger H., Walter J. Oleszek, and Frances E. Lee. Congress and Its Members. Washington, D.C.: CQ, 2012. Print. Davis, Susan. "This Congress Could Be the Least Productive since 1947." USA Today, 15 Aug. 2012. Web. <http://usatoday30.usatoday.com/news/washington/story/2012-0814/unproductive-congress-not-passing-bills/57060096/1>. Gallup. Americans' Views of Congress Revert to All-Time Low. Frank Newport. Americans' Views of Congress Revert to All-Time Low. Gallup, 16 Aug. 2012. Web. <http://www.gallup.com/video/156722/Americans-Views-Congress-Revert-TimeLow.aspx>. Huber, G. P. "Organizational Learning: The Contributing Processes and the Literatures." Organization Science 2.1 (1991): 88-115. Print. Levitt, Barbara, and James G. March. "Organizational Learning." Annual Review of Sociology 14.1 (1988): 319-38. Print. Madison, James. Federalist No. 57: " The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation." New York Packet, February 19, 1788 Mulvihill, Mary E. "House and Senate Rules of Procedure: A Comparison." CongressLink RSS. The Dirkinsen Congressional Center, 4 Feb. 1997. Web. <http://www.congresslink.org/print_basics_rulesofprocedure.htm>. Postman, David. The Seattle Times â&#x20AC;&#x153;Why so Many Races Lack Competitionâ&#x20AC;? 13 Oct. 2002: A1. The Seattle Times. Web. <http://community.seattletimes.nwsource.com/archive/?date=20021013&slug=nocompeti tion13m1>.
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Randolph, Edmund. The Records of the Federal Convention of 1787. Vol. 2, Preamble, Document 7. ed. Max Farrand New Haven and London: Yale UP, 1937. The Founders' Constitution. University of Chicago. Web. <http://presspubs.uchicago.edu/founders/documents/preambles7.html>. Strahan, Randall. Leading Representatives: The Agency of Leaders in the Politics of the U.S. House. Baltimore: Johns Hopkins UP, 2007. Chapters 1-2. Print. Swift, Elaine K. The Making of an American Senate: Reconstitutive Change in Congress, 17871841. Ann Arbor: University of Michigan, 1996. Print. Theriault, Sean. â&#x20AC;&#x153;Party Polarization in Congress.â&#x20AC;? Paper presented at Rice University, Houston, TX. Oct. 2005. Print Theriault, Sean. M. "Party Polarization in the US Congress: Member Replacement and Member Adaptation." Party Politics 12.4 (2006): 483-503. Print. United States Constitution. Art. I. Print.
Price 15 BIBLIOGRAPHY Brooking, Annie. Corporate Memory: Strategies for Knowledge Management. London: International Thomson Business, 1999. Print. Schneier, Edward V., and Bertram Gross. Legislative Strategy: Shaping Public Policy. New York: St. Martin's, 1993. Print. Sinclair, Barbara. Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress. Washington, D.C.: CQ, 2005. Print.