Much of the recent press attention about the new Congress has focused on what changes will be made in the rules governing how those inside the institution relate to lobbyist and others outside of Congress. That is understandable given the damaged reputation of our national legislature resulting from the Abramoff and Cunningham scandals. But there are changes inside the institution that are equally important if the Congress is to be restored to the institution it was intended to be.
Over the past decade, Congress has violated the letter and spirit of existing rules and has initiated new practices that although permitted by current rules are contrary to the principles of openness and thoughtful deliberation. At the same time, Congress has shirked the responsibility bestowed on it by the Constitution to be a separate but equal branch of government. It has ceased to insist on a full accounting of executive branch activities or to insure that these activities are executed in compliance with the laws, represent the most efficient use of taxpayer funds and are conducted in accordance with the best administrative practices. It is imperative that the new Congress restore itself both with respect to open, fair and deliberative procedures and the exercise of its Constitutional responsibilities to insure the efficient and faithful execution of the law.
Rebuilding a Deliberative Process
There will undoubtedly be some whose rights have been denied by these practices in recent Congresses and who will be tempted to make use of those same practices now that they are in the majority. The new Congress must not bend to such impulses. More than a year ago, we recommended that the following changes be adopted by a Republican lead Congress. We recommend the adoption of the same changes be accepted by the incoming Congress that will be lead by Democrats.
Specifically, House and Senate Rules first should be amended to ensure that:
a. Legislation shall not be considered for at least 24 hours and in all but the most unusual of circumstances 72 hours after copies of such legislation is available to all members of the general public. This shall apply to conference reports as well as legislation reported by the committees of the House and Senate.
b. The maximum time for a record vote (in the House) by electronic device shall be 20 minutes unless the time is extended by unanimous consent of both the majority and minority leader.
c. Conference Reports shall not be returned for consideration in either house unless all provisions on which the two houses were in disagreement were open to discussion in a meeting of the conferees; text representing the final disposition of the conference on all matters in which the two houses disagree is available to all conference participants in at least one meeting of the conference along with votes taken in the conference and how each conferee voted on each matter brought to a record vote;
d. All items that are agreed to in a conference on an appropriation bill that would result in the enactment of “legislation” as defined under House Rules are included in the conference report as separate numbered amendments and subject to separate votes in each body.
e. Members of Congress cannot condition the inclusion of language to provide funding for district-oriented earmarks or limited tax benefits on the basis of the vote cast by any member.
f. Amend House and Senate rules and the Budget Act to prevent the use of the reconciliation procedures for legislation that would increase the size of the budget deficit.
Restoring Checks and Balances
The founding fathers created three coequal branches of government, but the Constitution clearly makes the Congress first among the coequals. It has power to call witnesses, subpoena those who would otherwise chose not to testify, it originates the laws by which we live and provides the funds which make it possible for all other entities with in the government to function.
But the extraordinary powers granted to Congress are relatively meaningless in the absence of effective oversight. A Congress that is not informed about the challenges faced by program managers, that does not know which programs work and which are a waste of money, that can not evaluate the relative effectiveness of the various activities of the federal government can not use the powers to legislate or fund the government effectively and becomes a useless and itself wasteful appendage of government. Worse, such a Congress becomes a threat to our democracy because it fails to exercise the restraint on executive power that our founding fathers so carefully designed it to perform.
Oversight is nothing more and nothing less than using the powers to legislative, fund and if necessary subpoena to insure that the appropriate committees of the Congress know what the government that the Constitution charges them with creating and funding is doing with the authorities and funds that they have granted it. Their responsibility is not to embarrass, harass or distort the performance of executive branch programs and agencies but to honestly assess and fairly evaluate the mission and performance of those agencies and determine what the major problems are and how those problems can be fixed.
We offer the following recommendations for restoring responsible oversight:
a. Little oversight will occur unless Congress restores its work ethic. The new leadership must put an end to the Tuesday evening to Thursday afternoon work week by adopting a rule prohibiting Congress from adjourning for the year if they have not been in session and recorded votes during at least four days in each of 20 weeks.
b. The leadership of both parties and the respective caucus of each party should insist that each committee dedicate a significant portion of its staff resources to highly professional individuals with the programmatic, management and budgetary knowledge to conduct effective oversight.
c. The leadership should work to identify resources to help train staff in effective oversight techniques and upgrade the skills of those with oversight responsibilities.
d. Congress should direct additional resources to Departmental Inspectors General on the earliest possible funding vehicle. The Iraq Inspector General Office which was scheduled for termination in the recently signed Defense Authorization bill should remain open as long as substantial U.S. military and economic resources are directed to that nation.
e. Agencies and departments of the federal government should be place on notice at the earliest possible date that cooperation and the full and complete sharing of information about activities conducted at public expense is mandatory and that swift and severe action will be taken with respect to departmental and agency management accounts in the case of non compliance. The Appropriations Committee should cooperate with all other committees to help insure that this message is understood.
f. Each committee should review all programs and activities within their jurisdiction, establish oversight priorities based on the best available information concerning possible waste, inefficiency and failure to meet programmatic objectives and report this review to the leadership as soon in the legislative session as possible.
g. That the majority caucus move as expeditiously as possible in the selection of leadership, committee chairmen and committee membership. Decisions as to committee staffing, legislative priorities and oversight activities can not be finalized until Congressional committees are organized. That cannot happen until they are appointed.
h. The leadership should insure to the maximum extent possible that the Congress function in the early months of the coming session on at least a four day a week basis to allow time for organizing activities and to insure full member participation in setting committee oversight agenda and the beginning of oversight hearings and investigations.