Lawmaking
Responding to COVID-19 in a “Stratified Congress”
Most members of Congress won’t have much say in voting and oversight decisions.
As members of Congress have returned to their states and districts for the annual August recess, party leaders are negotiating with executive branch representatives on additional legislative responses to COVID-19’s health and economic effects. The coronavirus epidemic’s effect on governance has drawn attention to congressional procedures and the control delegated to party leaders with members voting by proxy for the first time in Congress’s history.
Yet the COVID-19 lawmaking environment (and that of the upcoming budget talks) is not new; as I show in my new book, Committees and the Decline of Lawmaking in Congress, it’s the continuation of a trend that has developed since the late 1970s when Congress reorganized its committees through the early 1980s when the legislature instituted new budget and decision processes and the mid-1990s when Congress shifted still more authority in favor of party leaders.
Lawmaking Has Declined Across Issues
Even though the novel coronavirus’s effects on Congress are not necessarily…well, novel, it still has important implications for decisionmaking and representation; what can we reasonably expect of our legislators given the kinds of decisions they are being asked to make? In my book, I describe and explain recent declines in congressional lawmaking activity and trace the decline to the committee level: committees are holding fewer legislative hearings and advancing fewer bills today than they were 40 years ago. We have not seen a similar trend in oversight and other kinds of non-legislative activity however; non-legislative hearings have held relatively steady since the 1980s.
After addressing lawmaking generally I examine activity across issues using the Policy Agendas coding scheme and data on legislative hearings, bills reported out of committee, and roll-call votes.
Picture a grid with four quadrants. The top right represents issues for which we’ve seen increases in legislative activity both in committees (legislative hearings, reporting out bills) and on the floor (particularly roll-call votes); the bottom right represents issues with increased floor activity but decreased committee legislating; the bottom left represents decreases in legislative activity both in committee and on the floor, and the top left represents issues for which committees have increased their legislative activity but with fewer votes taken on the floor.
Rank-and-File Lawmakers Are Less Involved
Since 1981, the House has moved towards that lower right quadrant for almost every issue; that is, members are being asked to cast more floor votes on just about every issue but committees are legislating less for most policy areas. I call this condition the “stratified Congress”: non-legislative policy decisions are being made by committee leaders and (as Jim Curry and others have shown) majority party leaders are exerting more of their scheduling authority over the voting agenda. Rank-and-file members find themselves in the middle, cut out of meaningful decisions made both in committee and on the floor; all they can do is vote yea or nay on legislation they likely had little part in drafting.
According to my analysis, the House has become the most stratified on Government Operations issues, with the largest increase in roll-call votes but declines in both kinds of committee legislative activity, particularly multi-agency appropriations bills and legislation that affects the bureaucracy. Commerce issues have seen the second-largest increase in roll-call votes, and committees have slightly increased the number of reported bills on those issues but significantly decreased the proportion of Commerce hearings devoted to legislation. Health, Energy, Defense, and Education lawmaking also have become more stratified across time in the House of Representatives. Housing, by contrast, finds itself in the upper right quadrant meaning committees have actually increased their legislative activity on this issue over the past several decades with only a modest increase in roll-call votes over that same period.
The Senate story has been somewhat different. A few issues are found in the bottom right quadrant, which represents decreases in lawmaking both in committee and on the floor; policy is increasingly made through non-legislative means in these areas. International Affairs and Defense have seen the biggest decreases in Senate committee lawmaking activity since the 1980s, followed by Social Welfare, Agriculture, and Civil Rights and Liberties. Health and Commerce issues have become the most “stratified” in the upper chamber with more floor votes being taken but fewer committee legislative actions.
Who is Accountable if the COVID-19 Response Doesn’t Work?
For most issues, including health care, the picture of Congress these data reveal is one where the vast majority of legislators have no say over what legislation comes out of committee (unless they happen to sit on that committee) and are asked to cast public, recorded votes on that legislation. The stratified Congress creates some concerns for holding our own representatives and senators accountable. On the one hand, we cannot reasonably expect members of Congress to read every page of every bill on which they vote; the committee system arose in part to help facilitate specialization and create cadres of members to whom a legislator could turn for advice on what a bill or amendment would do.
On the other hand, stratified lawmaking may create more demand for post-enactment oversight, which again shifts decisions towards a smaller group of interested legislators. Committees typically spend years laying the groundwork and developing legislation through hearings in which they hear from witnesses from a variety of backgrounds and perspectives who can inform legislators about a bill’s possible effects — and defects.
Legislation negotiated between party leaders and high-ranking executive branch officials does not go through the same process, which may increase a law’s unanticipated, undesirable consequences: think of 2017’s tax law, for which party leaders made changes in the bill margins moments before votes were taken, and which subsequently was “riddled with glitches.” Those unanticipated consequences then take up committee time and attention to sort through, which takes attention away from other issues and once again cuts out non-committee members from the oversight process. That stratification may make it hard for us as citizens to know how much credit or blame our representatives should receive for the policies addressing COVID-19.
