The Cup and the Saucer: Is Design Completely to Blame for a Slow Congress?

About the Author: Joseph Goldberg is a first year law student at American University- Washington College of Law. Joseph graduated from Florida State University and hopes to work in regulatory law or political law focusing on campaign compliance after graduating law school. 

 

The legislative branch of the United States is famously compared to a cup and saucer—the Senate is the saucer serving to cool hot legislation coming from the House of the Representatives, the cup. The idea that the Senate would serve as a check against the House’s susceptibility to “sudden and violent passions” was a point brought up in the Federalist Papers.[1]  However, nearly two and a half centuries have passed since the Federalist Papers. Now, as the United States Congress seeks to respond to a growing number of policy issues, attention must be given not only to the intentionally slow design of the institution, but also to the institution’s shortcomings in efficiency.

First, legislative efficiency, viewed through the lens of policy output, demonstrates that Congress has plateaued in passing substantive legislation. Looking at the sheer number of bills passed, the 115th Congress (2017-18) passed more legislation than any other Congress since 1962.[2] The 115th Congress not only passed more legislation, but it did so after holding the fewest committee and subcommittee meetings of any other Congress since the 80th Congress.[3] While this seems to indicate that Congress has grown more efficient, this trend is likely attributable the increasing amount of ceremonial legislation Congress has passed compared to substantive legislation.[4] Ceremonial legislation, including bills naming post offices and designating national holidays, padded the activity record of the 115th Congress for which the number of substantive laws remained on par with prior sessions.[5] After all, the 115th Congress failed to pass a timely spending bill, resulting in the longest government shutdown in United States history.[6] While this data does not show inefficiency per se, the outcomes of recent Congressional sessions do not support a trend toward growing legislative efficiency when it comes to passing substantive legislation.

Increased gridlock in recent sessions of Congress, in which Congress failed to address legislation it otherwise could have considered, shows a decrease in Congress’s capacity to handle its legislative responsibilities.[7] Gridlock, in large part, is attributable to the growing polarization between parties in congress.[8] Also at play is a growing trend in which fewer members have opted to generalize their legislative portfolios, choosing not to specialize in specific areas.[9] Studies have shown that this trend decreases the ability of Congress to overcome gridlock through members who have developed expertise in certain policy areas.[10]  This issue is exacerbated by Congressional salary caps, which, combined with efforts in the 1990s to reduce the size of committee staffs, make it difficult for members to surround themselves with staff who hold expertise in specific areas to efficiently overcome gridlock.[11] New technology, increased government powers, and employer competition from other government branches and private sector firms also stretch Congress’s resources thin.[12] Congressional staff are facing more informational demands from members than ever before as Congress’s policy work inflates.[13] In a recent poll, only fifteen percent of legislative staffers responded that they were “completely satisfied” that staff had the knowledge, skills, and abilities to adequately support members’ duties.[14] Furthermore, forty-two percent of staffers were either somewhat or very dissatisfied that members had adequate time and resources to understand and deliberate policy and legislation.[15]

The Senate’s role as a saucer is to blame for a lot of Congress’s inaction; however, blame should also be cast on Congress’s lack of capacity to efficiently handle its growing responsibilities. The most infamous tool the Senate has as a saucer is the filibuster. The Senate’s use of the filibuster began in 1789, and increased throughout the twentieth century, when it was utilized by opponents to try to run the clock on civil rights legislation.[16] In recent sessions, the Senate has increasingly utilized the filibuster, thereby slowing the legislative process.[17] While the legislative process in the United States is slow by design, this design is not entirely to blame for Congress’s legislative plateau. There are inefficiencies created in the legislative system by members’ disinterest in focused policy agendas and a disinvestment in staff and committee resources. These trends greatly impair Congress’s ability to react to policy and overcome gridlock, thereby creating inefficiencies which exacerbate the slowness of a deliberately careful and “cool” Congress.

 

[1] The Federalist No. 62, at 315 (James Madison) (Yale Univ. Press ed., 2009).

[2] Brookings, House Workload, 80th-115th Congresses, 1947-2018, Vital Stat. on Cong. (Feb. 8, 2021), https://www.brookings.edu/wp-content/uploads/2019/03/6-1-Full.pdf.

[3] Id.

[4] Drew Desilver, A Productivity Scorecard for the 115th Congress: More Laws than Before, but Not More Substance, Pew Rsch. Ctr. (Jan. 25, 2019), https://www.pewresearch.org/fact-tank/2019/01/25/a-productivity-scorecard-for-115th-congress/.

[5] Id.

[6] Mihir Zaveri et al., The Government Shutdown Was the Longest Ever. Here’s the History., N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/interactive/2019/01/09/us/politics/longest-government-shutdown.html.

[7] Molly Reynolds, Improving Congressional Capacity to Address Problems and Oversee the Executive Branch, Brookings (Dec. 4, 2019), https://www.brookings.edu/policy2020/bigideas/improving-congressional-capacity-to-address-problems-and-oversee-the-executive-branch/#footnote-20.

[8] Id.

[9] Craig Volden & Alan Wiseman, Members of Congress are Specializing Less Often. That Makes Them Less Effective., Wash. Post (Sept. 17, 2020, 5:00 AM), https://www.washingtonpost.com/politics/2020/09/17/members-congress-are-specializing-less-often-that-makes-them-less-effective/.

[10] Id.

[11] Reynolds, supra note 7.

[12] Matt Glassman, Notice & Comment, Congressional Capacity, “Government Contributions,” and Legislative Branch Spending Visibility, Yale J. on Regul. (2018).

[13] Casey Burgat, From Staff Cuts to Lagging Technology, Congress Has a Capacity Problem, Brookings (Sept. 11, 2017), https://www.brookings.edu/blog/fixgov/2017/09/11/congress-has-a-capacity-problem/.

[14] Id.

[15] Id.

[16] About Filibusters and Cloture | Historical Overview, United States Senate, https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm (last visited Mar. 14, 2021).

[17] Cloture Motions, United States Senate, https://www.senate.gov/legislative/cloture/clotureCounts.htm (last visited Mar. 14, 2021).

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