Tweaking the governmental process: Some modest suggestions

Whether or not Ezra Klein understands that there is a difference between what Klein would like the President to say at the State of the Union and what President Obama would like to say, 1 and setting aside the various problems with his piece, and, indeed, whether the State of the Union speech ought to exist at all, 2 it does raise a point worthy of consideration: Are there procedural tweaks that would benefit our government? 3 I will suggest a few such tweaks, one of which might well meet Klein’s approval, and several that would not.

To start with a note of concord, my first proposal is that the Senate should adopt fast-track default-approval procedures for executive-branch nominations and cultivate a culture of deference on those nominations. Even if one does not believe, as I do, that the President should generally get their choice of executive-branch appointments, 4 one should as a practical matter acknowledge the danger in which the confirmation wars have placed us. Presidents will be advised and served by whomsoever they please, and will not be constrained by congressional disapproval of their choices. If the President cannot have Mrs. X as his Secretary of Y, he will simply appoint her to an advisory position such as a czar of something-like-Y, or counselor to himself or Mr. Z, the titular secretary of Y. My example is from less than a month ago: President Obama nominated Antonio Weiss to be a Treasury Department undersecretary, and when the Senate deep-sixed the nomination, Weiss was simply appointed to be a “counselor” to the Treasury Secretary, a position to which Senate assent is not required. 5

This cannot be anything but bad for the republic. It’s analogous to the failure of CSPAN: CSPAN has made government less transparent, because making law, like making sausage, is an ugly business, and lawmakers are not going to do that work on camera. CSPAN thus forced the real business of legislation off the floor, where it had been subject to public scrutiny through the Congressional Record, and into private rooms, where it is subject to no scrutiny at all. Thus, not only does CSPAN fail to achieve its aims, its presence is detrimental because it displaces the real locus of power into the shadows. In the same way, the predictable result of the misguided war on executive-branch nominations will not be greater accountability, it will be a shift of the real locus of power further into the shadows. The trend will be for positions subject to Senate confirmation to be filled by safe, bland frontmen while real power and influence in the departments shifts to grey eminences styled as “counselors” subject only to Presidential approval.

What is needed is a culture change in the Senate, a deferential attitude toward the President’s nominations. But since our focus is on rule changes, let me suggest a rule change that would encourage better behavior: The Senate should adopt a procedural rule that all executive-branch nominations are automatically approved fourteen working days after the nomination is filed with the Senate unless ten Senators file a motion for the Senate to review the nomination in more depth. And the kicker is this: Signing such a petition suspends a Senator’s sponsorship privileges for a period of time. (Say, one month.) Nominations subject to such a motion would then move through the Senate in the traditional way. You want to make it simple for routine nominations to be approved, and possible for extraordinary nominations to be stopped, but at the same time you want to discourage wanton, irresponsible opposition by attaching a cost to it.

So much for nominations; what about legislation? One of the problems for both lawmakers and those who hope to keep an eye on what they’re up to is the sheer volume of text that is proposed in each Congress, much of it entirely frivolous. I would suggest two changes. The first is another change to the economics of legislative action: Rules that permit legislators to introduce only X bills (and co-sponsor only Y bills) in each session. The lower the limit, the stronger the disincentive to frivolous, ill-considered, or redundant bills and the stronger the incentives to work together. Misbehavior is much more likely when it is within a person’s discretion and there is no price attached. Second, a germanity rule. Page limits are impractical because some subjects are irreducibly complex, but a rule that any bill must be compact and deal with related subject-matter, subject to a point of order that kills the bill, might restrict the size of bills and eliminate omnibus spending bills.

What about the process of legislating? My view is that Congress is dysfunctional because its committees no longer perform their intended functions, and neither the House nor the Senate function as a legislature, which is to say, they do not meet, discuss bills, and propose and discuss compromises and amendments prior to approving or rejecting legislation. Instead, the legislative process today works like this: Legislators grandstand for the cameras in a committee room, and then the bill goes to the floor where legislators make grandstanding speeches to the cameras while purporting to speak to empty benches. Then people wander in and out to vote, and the vote is held open by the presiding officer until the correct result is reached. 6 We can fix this. First, we eliminate the incentive to grandstand by throwing CSPAN out of the capitol and the committee rooms. That’s the hardest sell of all, but it will fix a lot of the problems and make it possible to reform the committee process. Once the committees are no longer opportunities to film footage for the legislator’s Youtube feed and Facebook page, there will be little incentive for grandstanding, and committees can revert to their factfinding, winnowing, and drafting role, pipelining in expertise that legislators themselves lack. Somewhat easier to sell (but only somewhat) are the enforcement of quorum requirements for the House and the Senate and ending the odious practice of revision and extension of remarks, which permits legislators to say anything (or nothing) on the floor and insert whatever they please in the Congressional Record. 7 These changes would be massively unpopular with legislators, but I suggest that they are relatively easy sells for a simple reason: The motions to dispense with the quorum call and to revise and extend require unanimous consent, which implies that any single, brave legislator could shut down those two practices tomorrow. A group of legislators committed to objecting to such motions could end them for good.

Finally, let us talk about the composition of Congress, which, alas, and alone of my suggestions, would necessitate constitutional change. Enough has been written about term limits, the need for which we may take as a given. My focus is different. Klein cites the Seventeenth Amendment as a procedural change that we have done in the past; I would suggest undoing it as a procedural change that we need now. 8 Most of the federal usurpations and encroachments that took place during the twentieth century could not have passed a Senate in which the states qua states were represented, as per the original design, and the most heated arguments in Constitutional Law over what Congress has the power to do would be moot because no one would seriously entertain the proposition that the Senate would approve such actions even were the House to approve them.

Here my example is a pair of cases from the late 1990s, Seminole Tribe v. Florida and Alden v. Maine. Sovereign immunity has been a controversial and thorny doctrine for more than a century, and the Supreme Court was asked to consider whether Congress, when acting pursuant to its Article I powers, could abrogate state sovereign immunity in the federal courts (Seminole Tribe) or, yet more invasively, the state’s own courts (Alden). As a matter of law, the answer is obviously no, and the court correctly said no. But it said no 5-4, and most of the academy, which at that point was still an almost wholly-owned subsidiary of the Democratic Party, went berserk. Had the Seventeenth Amendment never been passed, the provisions by which Congress attempted to subject the states to such suits would have lost unanimously in the Senate, and so would never have been subject to litigation in the first place.

Restoring selection of Senators to state legislatures would simultaneously reinvigorate state legislatures, drain the partisanship out of the Senate, improve the quality of men and women who serve in the Senate (which, with Tocqueville’s observations in mind, is rapidly declining into a mirror-image of the House), and restore the structural check on federal encroachment that was essential to the Constitutional design.

Long-time readers will of course note that none of these are new themes for me, but I remain of the view that they are needful prescriptions.

Notes:

  1. See Klein,  What Obama would say at the State of the Union if he were being brutally honest, Vox.com, Jan. 20, 2015, http://www.vox.com/2015/1/20/7852905/obama-state-of-the-union (all web resources herein cited as last visited Jan. 24, 2015). There is room for doubt whether Klein, a hack’s hack of some years’ standing, understands that difference.
  2. I say no. See, e.g., Steve Chapman, Cancel the State of the Union, Washington Examiner, Jan. 17, 2015, http://www.washingtonexaminer.com/cancel-the-state-of-the-union/article/2558834. Like Justice Scalia, I concluded a number of years ago that it has become a tawdry spectacle that is unworthy of our republic and demeaning to all three branches of government. See Scalia: State of the Union “has turned into a childish spectacle”, CBS News, Feb. 13, 2013, http://www.cbsnews.com/news/scalia-state-of-the-union-has-turned-into-a-childish-spectacle.
  3. While political commentary is beyond Motu Proprio‘s ordinary ambit, I will assert proprietor’s privilege as I deem proper, whether expressly, see Simon Dodd, Judicial conservatism and the Obamacare cases, 2 MPA 26, 40-41 n.1 (2012), or tacitly, see, e.g., Dodd, The NSA programs, 3 MPA 114 (2013).
  4. The unitary executive doctrine makes the President’s officers his hands and surrogates, which means that (s)he cannot govern effectively unless (s)he is able to choose her own officers, which in turn implies he need for a norm of strong deference to her selections. I underscore two points here: First, deference is not abdication, see The NSA programs, supra, 3 MPA at 120-21, and second, that this applies only to executive-branch officers, and not to judicial appointments, which should receive significant scrutiny. Various posts that I wrote for SF explored these themes, which we need not rehearse anew today.
  5. Ian Katz et al, Weiss Withdraws as Treasury Nominee, Will Become Lew Adviser, Bloomberg News, Jan. 12, 2015, http://www.bloomberg.com/news/2015-01-12/weiss-withdraws-from-consideration-as-treasury-undersecretary.html.
  6. See, e.g., Wikipedia, http://en.wikipedia.org/wiki/Medicare_Prescription_Drug,_Improvement,_and_Modernization_Act#Legislative_history.
  7. The most notorious abuse of this process saw two Senators fabricate a debate that never happened in order to cite it in an amicus brief before the Supreme Court. See John Dean, Senators Kyl and Graham’s Hamdan v. Rumsfeld Scam, Findlaw, July 5, 2006, http://writ.news.findlaw.com/dean/20060705.html.
  8. I made the case for repeal in a lengthy SF post several years ago; it will eventually reappear when I finish editing the long-promised oft-delayed Overthinking It collection.