Members of the Select Committee on the Modernization of Congress held their first hearing of 2020 on Tuesday, January 14. The topic was how Congress could reclaim power it has lost to the Executive Branch. Members engaged in a lengthy and lively discussion of issues like congressional capacity and the power of the purse.
“The Framers created Congress as the first among co-equal branches of government. Article I establishes the Legislative Branch and enumerates Congress’ constitutional powers,” said Select Committee Chairman Derek Kilmer of Washington, a Democrat. “But Congress’ capacity to uphold these powers has weakened.”
“The American people’s First Branch is no longer truly equal,” said Vice Chair Tom Graves of Georgia, a Republican. A “diminished” Congress means a “diminished” government for the American people, he said.
One of the most discussed topics of the hearing was congressional control over appropriations, particularly as they relate to earmarks. Earmarks, also known as congressionally directed spending—and often derided as “pork”—were provisions in legislation (or in accompanying reports) that provided funding for various projects, like road improvements or bridges, across the country. Congress provided funding for states and districts via earmarks until January 2011, when the Republicans took control of the House and instituted a moratorium on the practice. Supporters of the moratorium argued that earmarks inflated the Federal budget and were abused in the mid-2000s.
Since the earmark ban, rather than allowing Members of Congress to decide how money should be spent, the Executive Branch has taken over that responsibility. Additionally, Members of Congress have tried to influence the process by “lettermarking” and “phonemarking”—i.e., requests to the Executive Branch that money be spent in certain ways.
Although earmarks were abused in the mid-2000s, the hearing participants discussed whether they had a legitimate role in the legislative process.
“Legislators understand the needs of their districts and their states oftentimes better than bureaucrats and appointees,” said John Hudak of the Brookings Institution. “The ability of legislators to deliver on those needs is not an obscene abuse of power. It is a constitutional obligation and a constituent expectation.”
Representative Emanuel Cleaver of Missouri, a Democrat, suggested that the earmark ban was a disproportional response to past scandals.
“We had three people who got in trouble,” he said. “Three people, and they’re all in prison, which is what is supposed to happen.”
Hudak later drew an analogy between Federal spending and a pie. Earmarking did not expand the size of the pie, he said, just the size of the pieces taken from it.
The Congressional Institute has supported restoring earmarks as a way for Members of Congress represent their constituents and exercise control over the government’s purse strings. Earmarks should be restored with proper transparency and accountability safeguards to prevent future abuses. For more, see “The Case for Earmarks: Were They Really That Bad?” and “How Congress Can Make the Earmark Process Work.”
In addition to discussing appropriations, a major topic of conversation was whether Congress has the capacity to carry out its functions, especially since it must oversee an ever-growing Executive Branch.
Rachel Potter, an assistant professor in the Department of Politics at the University of Virginia, told the committee that the Executive Branch started with 3 Cabinet-level departments and has since expanded to 15 Cabinet-level departments. It is estimated that there are 278 Executive Branch agencies. The number of Federal employees has remained steady at around 2 million for the last 70 years or so, but the number of private contractors has increased significantly. According to one estimate, contractors outnumber Federal employees by three to one. Along with the increase in the number of agencies and departments, the powers of the Presidency have expanded, through the use of devices like executive orders and agreements, and in other ways.
While the Executive Branch has increased its power and size, Congress has not. When the Republicans took control of the House in 1994, the number of staff working for committees was cut by a third. Much of the heavy-duty lifting for both legislating and holding the Executive Branch accountable is done in committee, so staff cuts there greatly affect Congress’ ability to carry out its constitutional functions. Additionally, congressional staff salaries are low compared to the private sector and even the Executive Branch, the cost of living in Washington is high, and the working schedule can be unpredictable. These factors lead many staff to seek employment elsewhere, leading to a “brain drain” from Congress.
Although there is high turnover among congressional staff, Members do not increase resources available in large part because of a fear the public will view such attempts negatively. Representative Susan Brooks of Indiana, a Republican, noted that constituents think that Congress does not need more staff or increased the salaries for them. “They truly believe we have far more than we need,” she said. “They really don’t care how much it costs to live in Washington, DC.” According to Kevin Kosar of the R Street Institute, Congress could provide more full-time employees to Legislative Branch agencies like the Congressional Research Service and the Government Accountability Office or to committees without experiencing public backlash as they would if they increased staffing for their personal offices. He also noted that oversight over the Executive can save taxpayer money, since it roots out waste, fraud and abuse, but it requires an investment of resources to do this. Additional resources can be described in terms of providing “better customer service.”
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.