When I was younger, I was singularly obsessed with Congress. I spent my undergraduate years reading the congressional literature and obtaining as much experience as I could get on the Hill. Two events guaranteed my love and affection for the House of Representatives in particular. First, when I was an undergraduate, I obtained an Archer Fellowship that allowed me to intern for Speaker John Boehner at the height of his power. That internship was not in Boehner’s personal office. Instead, I got to sit in the Capitol in what was then called the “TACC” (short for the “Tommy Andrews Command Center”).[i] The TACC was filled with staff assistants who handled the daily staffing activities that helped keep the show running on time. It was right next to the offices occupied by Boehner’s formidable policy experts. Collectively, that floor I was on—located, if I remember correctly, two floors above the Speaker’s Lobby and one above the Majority’s Whip’s Office—was a locus of activity for the House GOP. My time there helped me understand the duality of Boehner’s position. As befitting a Speaker in an era of the strong speakership, he had tremendous control over the floor and the agenda. At the same time, there were cracks appearing in the foundation. That duality, and the struggles of lawmaking, helped kindle my love for the House of Representatives.
The second thing that lured me into later studying Congress was a chance encounter with the work of the late Barbara Sinclair. I read her book, Unorthodox Lawmaking, like a religious text. Sinclair spent her life explaining the rise of the modern Congress, marked as it was by the powerful Speaker of the House. Sinclair treated the structure and operation of the House as a byproduct of complex forces operating around members of Congress:
[C]hanges in the legislative process can be seen as the responses of members to the problems and opportunities the institutional structure and the political environment present to them as they pursue, as individuals or collectively, their goals of reelction, influence in the chamber, and good public policy.
Sinclair thought that Congress was constantly evolving. The slow centralization of authority that started in the 1970s was, in her words, merely “the latest installment in an ongoing story.” In Sinclair’s telling, efforts to reform the committee-centric system in the house devolved power down to individual members only at first. Devolution eventually led to a massive rise in amendments on the floor, which created a ton of headaches for the majority party. Eventually, the Democrats in the House looked to party leadership as an alternative to the chaos on the floor and began centralizing authority in the Speaker’s Office. The Speaker could be given authority so long as he or she served the median member of the majority faithfully. That process, which began earlier, was sent in hyperdrive by the polarization of both parties in Congress.
I loved Sinclair’s work because it provided the best way to understand institutional developments in Congress during the post-bellum period. The allocation of power in the House was a response to a variety of factors: polarization, competitive elections, the media environment, and other social forces. Congress, in Sinclair’s telling, operated almost like an immune system. It evolved to meet the demands of the moment so that it could continue to play its constitutionally assigned role.
This perspective gave Sinclair’s work an edge that I really appreciated. She avoided much of the nostalgia that defines elite characterizations of Congress. Up until the end of her life, Sinclair openly questioned whether we even had the tools to evaluate the modern “unorthodox” lawmaking on the level of normativity.[ii] She concluded that proposed attempts to fix Congress with mere procedure would only mitigate underlying problems because the forces creating “gridlock” and dysfunction were much larger than anything having to do with the rules. Instead, she treated the Congress we have as an organic response to contemporary conditions with no yearning for some fabled earlier model. Sinclair introduced me to a wonderful world of scholarship wherein a calling card of a congressional expert was the understanding that the “regular order” of the Schoolhouse-Rock! model of Congress was probably a myth. Even if it ever did exist, it’s not quite as desirable as folks often assume.
So long before I ever arrived at a law school, I tended to think of Congress as dynamic. To the extent that there was genius in the drafting of Article I, it was in shutting up. The undefined nature of the House’s operations is, in my opinion, a major stroke of luck that has contributed to the success of the Republic. Congress is not weighed down by the formalisms that are usually cast on the other branches of government, precisely because the Constitution is so sparse in defining Congress’s internal dynamics. This open-ended texture has allowed Congress to adapt to a variety of circumstances. When polarization gets so high that it would impede the legislative process, members have a greater incentive to centralize authority. When polarization declines, or when one party has effectively captured Congress such that the minority has greater incentive to play ball, centralization is likely to decline. While elites of various stripes have complained about Congress for much of the post-Civil War period—often with little awareness that they are recycling century-old laments—they are often missing a dynamic and constant process of reinvention.
I thought about Sinclair and Boehner a lot last week when Kevin McCarthy faced a mini-insurrection from members of his own party. The rebels seemed to lack a coherent demand or ideology, but they sought and (apparently) obtained concessions from McCarthy that would weaken his speakership considerably. This led some folks to express sympathy with the rebels’ complaint that the modern House has become too centralized. Alexander Sammon, writing in Slate, lamented party leadership’s “exorbitant control over rulemaking and the legislative and appropriative processes.” Others picked up the ball and argued that some kind of decentralization would be beneficial because it would allow for more deliberation in the House.
Contrarian that I am, I pushed back against this optimism both online and with folks in my life. By my vantage, decentralization without addressing the circumstances that led to centralization in the first place (polarization, competitive elections, etc.) is unlikely to stick or achieve desirable results. While a return to a mythologized “regular order” may seem attractive, any kind of decentralization is probably both unlikely and undesirable. (on this point, I recommend Walter J. Oleszek’s recent CRS report on “Regular Order”). Without some change in societal circumstances, rank-and-file members have little incentive to operate with the kind of bipartisanship that is a prerequisite to a decentralized model for the House. If they can’t operate in bipartisan manner, well then the needs of legislating incentivize the House to centralize so long as the Speaker faithfully serves the rough median of his or her caucus.
At some points, I was accused of embracing the same kind of strong-man thinking that has been deployed to justify centralized power in the Executive branch. I don’t think that’s quite right. Unlike the seemingly inexorable centralization of authority in the Executive branch, centralization in the House depends entirely on factors like polarization. As soon as those factors change, the rank-and-file members lose their incentive to delegate extensive authority to the Speaker. In this sense, Congress has a self-regulating feature.
What of deliberation? What of the disincentive to serve in Congress for folks outside of leadership? I regard the hope for a more deliberative House that empowers rank-and-file members as *probably* a pipedream. I’m not sure that the committee-lead system that predated the strong Speaker model was more deliberative in any meaningful sense. Instead of party leadership controlling things, committee chairs wielded incredible power. This was an era when a young lawmaker like Lyndon Johnson chafed at their own uselessness in the House power structure. I’m not sure that the House has ever really operated like folks think in the modern era. On a deeper level, I’m not sold that deliberation is really the point of the House as a description of how it’s operated for the last century. Centralization has been the name of the game, it’s just all about where you allocate that power.
Overall, I could be wrong about decentralization. Maybe some other factors, like the small majority and a media environment that rewards the rebels for obstruction, are complicating the internal logic of centralization beyond repair. Hell! Maybe this really is a paradigm shift for the House. But the more important point is that we should all be skeptical of that nostalgia for a mythologized Congress of the past that worked. It’s not just probably wrong, it’s incredibly unhelpful for how we think about Congress today. There is no Congress for all seasons. So when we talk about decentralization, we should ask ourselves whether it would produce good outcomes today under the circumstances we’re living in. In the words of a great congressional scholar, “we should talk about whether the procedures we have are good or bad, healthy or pathological.” The myth of “regular order” “seems to be about something slightly orthogonal to that, and perhaps less helpful.”
In the end, all we have to evaluate congressional procedure by is that: Will they produce good results or bad in the Congress that we have?
[i] Tommy was, when I knew him, already on his way towards becoming a legendary Hill staffer. He rose from the bottom of the Hill hierarchy to being Boehner’s Special Assistant.
[ii] Sinclair ended up being less sanguine about Congress’s ability to fulfill its constitutional role but concluded that the problems facing Congress are much deeper than questions of power allocation or procedure. Instead, she concluded that the American system of governance is poorly equipped to handle polarization and divided government simultaneously.