Guest Post: Congressional Legislation Part II

Submitted by Lune.

As promised, the following is part II about the legislative process. While the first post was primarily about how Congress gathers information, this post will look at some of the forces affecting Congress’s ability to create good legislation. As you’ll quickly notice, IMHO, the news isn’t very good…

Anyone who watches Congress go about its business will note a certain bipolar proclivity to its actions: it will snooze as important issues fester; then, at a seemingly random moment, it will wake up, and, after a frenzy of hearings, speeches, and negotiations, it will write and pass enormous bills faster than a harlequin ghost-writer on crack.

The public is therefore left cursing Congress for its laziness and inaction, then cursing it for its hasty decisions and rushed, poorly thought-out laws. There seems to be no in-between.

The reality is that getting a bill passed is somewhat akin to laying siege to a castle (the castle being Congress and the policy advocates being the marauders).

A successful siege campaign in the Middle Ages could last years, and consisted of a slow grinding down of the inhabitants of the castle while building your siege weapons, training your forces, and probing the walls for weaknesses. Then, when a weakness was found (or created), all of a sudden, your forces would rush in, a huge, noisy battle would ensue, and very quickly, you’d either become the king of the castle, or be dead with your head proudly displayed on a pike. For someone watching just the castle, it can appear like years of humdrum tedium interrupted by sudden, random chaos.

The legislative process is a little like that (although being more civilized, we’ve replaced the pike with a symbolic skewering on the late night comedy shows).

Despite the occasional oddball bill that manages to sneak through, it’s actually quite difficult to get a bill signed into law. While any Congressperson can introduce any bill on any topic, the vast majority of those bills are never even considered in committee, much less make their way to a committee vote, full vote, conference, final vote, and (finally), a presidential signature. Take away the bills that Congress is required to pass every year (e.g. budget, appropriations, re-authorizations, etc.), and the percentage becomes even lower.

Thus, policy advocates understand that merely writing a bill and sitting and waiting for Congress to pass it is as futile as a solitary knight knocking on a castle door asking to be let in. Successful legislative efforts are often years (frequently decades) in the making, and involve a long process which includes gathering the data and research you need to make your case, developing your policy proposals, generating public support and attention to your issue, finding a few Congresspeople to be early champions of your cause, then starting the dreary slog through interminable rounds of hearings, amendments, negotiations, votes, etc. (usually repeated through multiple Congresses) until finally, hopefully, your bill is passed. Or not (if your sponsor loses his re-election bid or the Committee chairperson who loved your bill retires).

But occasionally, for some reason, your pet issue becomes thrust into the public spotlight. The New York Times puts it on the front page. A celebrity talks about it during his Oscar acceptance speech. Opinion polls list your issue as #3 on the list of America’s most pressing problems. Something Must Be Done. In other words, the castle has been breached. At this point, a mad scramble begins to find a plan, any plan, that has at least a marginal chance of convincing the public that it will solve the problem. And if your bill, gathering dust with each Congressional session, happens to be available, it will be passed and thrust in front of the President before you have a chance to say “But wait! I have one more amendment!”.

Believe it or not, this is the good news part of this post. Why good? Because in most of these situations, although to the public it seems that Congress just magically pulled a hundred-page bill from thin air, most of the times, that bill was drafted from the dozens of policy proposals, bills, and amendments floating around in and out of Congress for years being debated, refined, negotiated, etc. waiting for a chance to get attention.

A recent example is the Enron affair. Prior to Enron, corporate governance and accounting advocates have, for decades, been crafting proposals for stricter accounting rules, increased responsibility for board members, etc. And for decades, these proposals were nothing more than think tank position papers, or bills introduced and quickly forgotten at the beginning of each session. Then Enron broke, there was a mad scramble to address the issue, and ultimately, Sarbanes-Oxley was created as a hodgepodge of proposals that had been languishing for years.

On the upside, many of the individual proposals in Sarbanes-Oxley had been around for years. On the downside, the chaotic way in which they were combined left much to be desired. Just as the most well-laid siege tactics are frequently upended during the chaos of a castle breach, so can the final push to pass a bill undermine whatever merits the bill might have had in the first place.

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As bad as this process sounds, I believe it continues to get worse, for the same reason that decision-making in a lot of fields has deteriorated: decisions have become more complex, the volume of information that needs to be absorbed to be “knowledgeable” has exploded, and the time available to act has shortened.

As a historical example, the foundations of modern financial regulation rest on a series of laws passed in the New Deal era: The Securities Act of 1933, the Banking Act of 1933 (aka Glass-Steagall), the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940. The first 3 were passed passed 4 and 5 years, after the crash of 1929. The last two pieces were passed half a generation (and more importantly >2 presidential terms) after 1929. In contrast, Enron imploded in the fall of 2001, and Sarbanes-Oxley was enacted in July, 2002, less than a year later.

In our current mess, if you count the Bear Stearns implosion as the start of our crisis (or at least the general recognition that it was something more than a contained subprime problem), we’re barely a year into it. Yet the pressure to do something is immense, for several reasons:

1) The press cycle used to be measured in weeks, then days, and is now hours or less, what with live interviews of talking heads on 24-hour news channels. That means Congresspeople are under intense pressure to respond to complicated issues very quickly. And since the press only has time for 5 second soundbites, the responses don’t need to be (and indeed can’t be) nuanced or sophisticated. While telephones, telegraphs, and telegrams were all present in 1929, they were only used for breaking major news events, and that trickle doesn’t compare to the barrage of news that gets transmitted instantaneously these days.

2) There is a tremendous first mover advantage in Congress just as in business. The first mover gets the most press coverage, gets to hugely influence the terms of the ensuing debate, and has a much higher chance of getting his/her bill passed, even if it’s worse than later efforts.

The window to be the first mover these days is very narrow, which decreases the time the first mover has to put his/her bill out there. While Congress can be cooperative, there is quite a bit of competition and jockeying for position on important issues. Congressional success is measured in terms of legislation passed, press attention garnered, and election funds raised, rather than profits as it’s measured in business, but the competitive atmosphere between Congresspeople, even within the same party, is quite similar to the business landscape.

For example, the reader will recall Grassley’s and Levin’s hedge fund regulation bill which was covered in this blog last fall. Its actual provisions were few in number, and poorly thought out. And it’s no surprise that it went nowhere. But it had a good title, “The Hedge Fund Transparency Act”, which meant it got good press for its sponsors, it put the industry on notice that moves were afoot to begin the regulatory process, and it allowed Grassley and Levin, two people who would otherwise have very little influence on hedge fund regulation, to at least place a marker on the issue that they wished to be included in future discussions.

In contrast, subsequent bills such as the Private Fund Transparency Act, the Hedge Fund Adviser Registration Act, etc. have garnered far less public attention (not to imply that their quality makes them deserving of more…).

3) The toll of fundraising and campaigning. Modern campaigns have become so expensive and drawn-out that fundraising and constant campaigning is slowly crowding out time spent actually legislating. In the past, Congress actually deliberated 5 days a week, and most people, after being elected, actually moved to DC and lived there. Believe it or not, Congresspeople — even those of opposing parties — used to play cards together, or get their families together for outings on the weekend, or meet socially during events in DC, just like regular co-workers in any office. That meant that even on days when Congress wasn’t in session, people were around to informally gather and form a milieu of continuous discussion, negotiation, and exchange.

Nowadays, Congress is in session for barely 3 days a week, and most elected officials keep their families in their district and fly home every week. Harry Truman famously derided the 1947-48 Congress as the “do-nothing” Congress for meeting for 108 days. In contrast, the 2006 Congress met for just 71 days. During those times, schedules are jam-packed with hearings, important votes, meetings with staff, etc. meaning important matters get triaged out due to scheduling conflicts. The rest of the time? Increasingly spent fundraising.

In essence then, the business of legislating has become secondary to getting elected. Congresspeople fly into DC for a few days during which time they scuttle from meeting to meeting, skipping or cutting short time in hearings or panels (part of the reason hearings are so lousy is because rarely do Congresspeople stay for the entire time, choosing instead to come in, ask their questions for the cameras, then leave), cramming in quick meetings with staff and key officials, hurrying to the floor to cast a vote when it’s needed, then flying out again, exhausted, to get back on the campaign and fundraising trail. In their absence, the staff manage the nitty-gritty of shepharding legislation.

While I’m under no illusions that the politicians of previous years were equally focused on their re-election, the demands of campaigning were definitely less, allowing more time to be spent on legislating.

So to sum it up:

1. There are lots of extensively researched, fleshed out policy proposals for almost any issue imaginable, floating around Congress for years and decades.
2. The complexity of problems has grown.
3. The urgency of “putting something out there” has shortened the time available to absorb the voluminous amount of information and proposals available and draft a good solution.
4. The exigencies of the modern campaign means that even in the shortened time available, there is a smaller proportion of that time (and mindshare) that is dedicated to the task of governing.