Dysfunctional congress?

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 371-386

  Shepsle, Kenneth A ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 67649540551     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (70)

1. 1 GEORGE J. STIGLER, The Economists' Traditional Theory of the Economic Functions of the State, in THE CITIZEN AND THE STATE: ESSAYS ON REGULATION 103, 113 (1975) ("We may tell the society to jump out of the market frying pan, but we have no basis for predicting whether it will land in the fire or a luxurious bed."). For other similar bits of wisdom, see generally GEORGE J. STIGLER, THE ECONOMIST AS PREACHER AND OTHER ESSAYS (1982).
2. 2 See, e.g., Edmund L. Andrews and Robert Pear, With New Rules, Congress Boasts of Pet Projects, N. Y. TIMES, Aug. 5, 2007, at Al (describing how legislative reform opening earmarks to public scrutiny has had the unintended effect of raising the value of earmarks as a measure of members' clout).
3. 3 See, e.g., WILLIAM YANDELL ELLIOT, THE NEED FOR CONSTITUTIONAL REFORM 234-35 (1935).
4. 4 SANFORD LEVTNSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
5. 5 See, e.g., Jon Hilsenrath, Serena Ng and Damian Paletta, Worst Crisis Since '30s, with No End Yet in Sight, WALL ST. J., Sept. 18, 2008, at Al.
6. 6 See, e.g., Louise Story, Leaving Wall Street for a Job Overseas, N. Y. TIMES, Aug. 11, 2008, at CI.
7. 7 See, e.g., Edmund L. Andrews, Economy Shed 598, 000 Jobs in January, N. Y. TIMES, Feb. 6, 2009, at Bl.
8. 8 Cf. INT'L MONETARY FUND, WORLD ECONOMIC OUTLOOK 5 fig. 1.4 (2005), available at http://www.imf.org/external/pubs/ft/weo/2005/02/pdi7chapterl.pdf (showing rises and falls in global headline inflation).
9. 9 See, e.g., Peter S. Goodman, Credit Enters a Lockdown, N. Y. TIMES, Sept. 25, 2008, at Al.
10. 10 Cf. INT'L MONETARY FUND, supra note 8, at 4 fig. 1.3 (displaying global exchange rate developments from February 2002 to December 2004).
11. 11 LEVINSON, supra note 4, at 7-9.
12. 12 Lydia Saad, Bush Presidency Closes with 34% Approval, 61% Disapproval, GALLUP, Jan. 14, 2009, http://www.gallup. eom/poll/l 13770/Bush-Presidency-Closes-34-Approval- 61-Disapproval.aspx (stating that George W. Bush's thirty-four percent approval rating at the end of his presidency was slightly higher than the lowest rating during his tenure and higher only than Richard Nixon and Harry Truman).
13. 13 Frank Newport, 111th Congress Begins in Very Disapproving Environment, GALLUP, Jan. 6, 2009, http://www.gallup. com/polV113656/111th-Congress-Begins-Very-Disapproving-Environment.aspx (including an all-time Gallup low approval of fourteen percent in July 2008, the 2008 congressional approval averaged only nineteen percent).
14. 14 See id.
15. 15 LEVINSON, supra note 4, at 25-77.
16. 16 It is also a reluctance to take personal responsibility. As Cassius famously put it, "[t]he fault, dear Brutus, is not in our stars, [b]ut in ourselves." WILLIAM SHAKESPEARE, JULIUS CAESAR act 1, sc. 2 (John Dover Wilson ed. 1964).
17. 17 See, e.g., Christina Spencer, Why They Still Want a Country, TORONTO SUN, Feb. 4, 2009, at 24 (discussing Quebec sovereigntists and their desires for independence from Canada).
18. 18 Cf., e.g., No Republic! Australians for Constitutional Monarchy, http://www.norepublic.com.au/(last visited Feb. 11, 2009) (stating a mission to defend the role of the crown in the Australian constitutional system).
19. 19 E.g., James Krikup, Gordon Brown's Personal Popularity Hits Historic Low, Poll Shows, DAILY TELEGRAPH (London), Aug. 1, 2008, http://www.telegraph.co.uk/news/2481215/Gordon-Browns-personal- popularity-hitshistoric-low-poll-shows.html.
20. 20 See Winston Churchill, Speech to the House of Commons (Nov. 11, 1947), quoted in THE OXFORD DICTIONARY OF QUOTATIONS 221 (6th ed. 2004) ("No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time.").
21. 21 U. S. CONST, art. I, § 2, cl. 5; id. § 3, cl. 2.
22. 22 Id. § 5, cl. 2.
23. 23 Id. at cl. 3.
24. 24 On the value of transparency, see generally Abhinay Muthoo and Kenneth A. Shepsle, Information, Institutions and Constitutional Arrangements (Oct. 12, 2008) (unpublished manuscript, available at http://scholar.iq.harvard. edU/files/scholar/uploads/3/Muthoo-and-Shepslesubm-EJ-10.13.08-2.pdf).
25. 25 U. S. CONST, art. I, § 5.
26. 26 See Gerald Gamm and Kenneth Shepsle, The Emergence of Legislative Institutions: Standing Committees in the House and Senate, 1810-1825, 14 LEGIS. STUD. Q. 39, 50 tbl.l (1989).
27. 27 Id. at 53-57. If Rip Van Winkle had fallen asleep in 1790 and awakened in 1815, he would not have recognized Congress. If, on the other hand, he had fallen asleep in 1815 and woke up a century later, he would have been in familiar territory.
28. 28 See STEVEN S. SMITH and CHRISTOPHER J. DEERING, COMMITTEES IN CONGRESS 32-36 (2d ed. 1990).
29. 29 Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812; see SMITH, supra note 28, at 38-39.
30. 30 See JOHN BAUGHMAN, COMMON GROUND: COMMITTEE POLITICS IN THE U. S. HOUSE OF REPRESENTATIVES 18 (2006) (listing some of the Republican changes in 1995).
31. 31 There had been another major reorganization in 1970, focusing mainly on the management of committee business. Id. at 46-49.
32. 32 For a list of the congressional rules governing committee assignments, see KENNETH A. SHEPSLE, THE GIANT JIGSAW PUZZLE: DEMOCRATIC COMMITTEE ASSIGNMENTS IN THE MODERN HOUSE 158-59 (1978).
33. 33 Cf. id. at 130 (stating that in the Eighty-seventh Congress, POCS was still a "semiexclusive" committee).
34. 34 For general background on the activities and strategies of committees and committee members, see generally RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES (1973).
35. 35 See id. at 5-9.
36. 36 The "bridge to nowhere" - an earmark for Alaska in 2005 - is used by Levinson to illustrate congressional dysfunctionality, a prescient choice in light of the selection of the governor of Alaska as the Republican vice-presidential nominee in 2008 and the conviction of Alaska's senior senator, responsible for the earmark, on corruption charges. LEVTNSON, supra note 4, at 25.
37. 37 See Abhinay Muthoo and Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in INSTITUTIONS AND ECONOMIC PERFORMANCE 249-91 (Elhanan Helpman ed., 2008) (providing a detailed theoretical argument about the effects of bicameralism on pork barreling).
38. 38 For an empirical exploration of these remarks, see generally Kenneth A. Shepsle, Robert P. Van Houweling, Samuel J. Abrams and Peter C. Hanson, The Senate Electoral Cycle and Bicameral Appropriations Politics, 53 AM. J. POL. SCI. (forthcoming Apr. 2009) [hereinafter Shepsle et al., Senate Electoral Cycle], available at http://scholar.iq.harvard.edu/files/scholar/uploads/3/ajps-final-revision-11.05. 08.pdf.
39. For other research and empirical studies on this point, see DIANA EVANS, GREASING THE WHEELS: USING PORK BARREL PROJECTS TO BUILD MAJORITY COALITIONS IN CONGRESS 162-222 (2004);
40. FRANCES E. LEE and BRUCE I. OPPENHEIMER, SIZING UP THE SENATE 83-122 (1999);
41. Michael H. Crespin and Charles J. Finocchiaro, Distributive and Partisan Politics in the U. S. Senate: An Exploration of Earmarks, in WHY NOT PARTIES? PARTY EFFECTS IN THE UNITED STATES SENATE 229, 235-50 (Nathan W. Monroe, Jason M. Roberts and David W. Rohde eds. 2008);
42. William R. Hauk, Jr. and Romain Wacziarg, Small States, Big Pork, 2 Q. J. Pol. Sci. 95, 96-105 (2007).
43. 39 See Shepsle et al., Senate Electoral Cycle, supra note 38 (manuscript at 32).
44. 40 Id.
45. 41 Id.
46. 42 For a critical assessment, see LEVTNSON, supra note 4, at 29-38.
47. 43 Id. at 44.
48. 44 See GARY W. COX and MATTHEW D. MCCUBBINS, SETTING THE AGENDA: RESPONSIBLE PARTY GOVERNMENT IN THE U. S. HOUSE OF REPRESENTATIVES 37-49 (2005).
49. 45 Id. at 9. Cox and McCubbins also liken a majority party in Congress to a private partnership - say an accounting or law firm - managed by its senior partners each of whom has his or her own axe to grind. Id. at 18-19.
50. 46 Democrat Franklin Delano Roosevelt won the presidency in a landslide and the Democratic Party won majorities in both houses of Congress. JOHN M. BLUM ET AL., THE NATIONAL EXPERIENCE: A HISTORY OF THE UNITED STATES 668 (5th ed. 1981).
51. 47 Democrat Lyndon B. Johnson handily defeated Senator Barry Goldwater, winning over sixty-one percent of the popular vote. The Democrats also had a two-thirds majority in both the House and the Senate. MARY BETH NORTON ET AL., A PEOPLE AND A NATION: A HISTORY OF THE UNITED STATES 946 (1986).
52. 48 Held in the wake of the Watergate scandal, Republicans lost forty-three seats in the House, ending up with fewer than a third of the seats. Adam Clymer, Buoyed by Resurgance, G. O. P. Strives for an Era of Dominance, N. Y. TIMES, May 25, 2003, at Al.
53. 49 In the middle of President Clinton's first term, the Republican Party gained a majority of the seats in the House for the first time since 1954. Republicans also captured eight seats from Democrats in the Senate, gaining control for the first time since 1986. Dan Balz, A Historic Republican Triumph: GOP Captures Congress; Party Controls Both Houses for the First Time Since '50s, WASH. POST, Nov. 9, 1994, at Al.
54. 50 Continuing with the coalition government analogy, in multiparty parliaments it is rare that a single party acquires a majority of the seats. In such circumstances that party may prosecute its party manifesto relatively unfettered. More typical is several parties combining to form a coalition government. Its very heterogeneity makes the prosecution of a common plan more difficult.
55. 51 COX and MCCUBBINS, supra note 44, at 17-34.
56. 52 Id. at 41-43.
57. 53 Id. at 221.
58. 54 See MICHAEL FOLEY, THE NEW SENATE: LIBERAL INFLUENCE ON A CONSERVATIVE INSTITUTION 1959-1972, at 37-51 (1980).
59. 55 See LEVINSON, supra note 4, at 29-38.
60. 56 It should be noted that under extreme pressure, the Democratic leadership in 1961 supported a temporary enlargement of the Rules Committee in order to overcome the committee's conservative bias, a change made permanent in 1963. This paved the way for the civil rights legislation that emerged in 1964. The 1961 vote approving an enlarged Rules Committee, pitting Speaker Sam Rayburn against Rules Committee Chair Howard Smith, was a knife-edge 217-212 in favor. See FOLEY, supra note 54, at 38-40.
61. 57 COX and MCCUBBINS, supra note 44, at 221.
62. 58 42 U. S. C. § 1973 (2000).
63. 59 See DAVID W. ROHDE, PARTIES AND LEADERS IN THE POSTREFORM HOUSE 3-16 (1991).
64. 60 COX and MCCUBBINS, supra note 44, at 223; see ROHDE, supra note 59, at 93-105 (explaining how the Speaker's increased powers fostered the resurgence of partisanship in the House).
65. 61 See, e.g., THE FEDERALIST No. 62, at 377-78 (James Madison) (Clinton Rossiter ed., 1961).
66. 62 See, e.g., Ronald C. Lease, John J. McConnell and Wayne H. Mikkelson, The Market Value of Control in Publicly-Traded Corporations, 11 J. FIN. ECON. 439, 469-70 (1983).
67. 63 Id.
68. 64 Steven R. Cox and Dianne M. Roden, The Source of Value of Voting Rights and Related Dividend Promises, 8 J. CORP. FIN. 337, 350 (2002) ("The presence of a control threat significantly increases the voting premium....").
69. 65 The economics-inclined reader may appreciate that those who owned land when a territory became a state enjoyed a windfall gain (or loss, respectively) depending on whether their state had less (or more, respectively) population than the average state. Future buyers of land, however, will pay the market price reflecting all factors (including the political) that have been impounded into the value of the asset.
70. 66 DAVID W. BRADY and CRAIG VOLDEN, REVOLVING GRIDLOCK 208-09 (2d ed. 2006).