Legislative gridlock and nonpartisan staff.

• Author: Yin, George K.
• Position: The American Congress: Legal Implications of Gridlock

INTRODUCTION

In a recent book, former Congressman Mickey Edwards blames much of the gridlock in Congress on the political parties because of their influence over both the electoral process and legislative governance. To address the latter issue, he would revise various congressional rules and procedures (including the Senate filibuster and the role of the House Rules Committee) and institute nonpartisan selection of leadership, committees, and committee staff in Congress. (1) This Essay considers his last suggestion--use of nonpartisan professional committee staff--separate from his other proposals. While his other ideas may have merit, they would require reversal of longstanding traditions in Congress. (2) In contrast, up until around 1970, the existence of nonpartisan professional committee staff was more the rule rather than the exception in Congress. Further, Congress currently delegates important legislative tasks to nonpartisan professionals and has done so for many years. In addition, the significant role staff plays in the legislative process is well-recognized. Thus, a change to nonpartisan professional committee staff might be an idea that could be effected in the near term and have some impact on legislative outcomes.

Part I provides background on the principal nonpartisan professional staffs in Congress, past and present. It describes the use of nonpartisan professionals by the committees and a number of legislative support organizations. Part II then explores the impact of nonpartisan professional committee staff on legislative gridlock. It first sketches out a "theoretical case" for why such staff might help reduce gridlock. The case is premised on nonpartisan staff having an expertise distinct from that of partisans, and sufficient influence in Congress to effect legislative outcomes. The remainder of Part II then raises several questions about this theoretical case, including whether the required "expertise" and "influence" of nonpartisan staff are, to some extent, incompatible.

Before we begin, a few cautionary notes. The role of political parties in Congress is sometimes explained as a way to make the legislative process more efficient. Members of the same party are thought to have certain preexisting relationships that can be drawn upon to help negotiate and produce legislative outcomes. Under this view, parties help to reduce the transaction costs of legislating. (3) Diminishing the role of the parties in Congress could, therefore, make legislative solutions more costly and even harder to attain.

Moreover, increased party influence in Congress (and the greater centralization of power that often accompanies it) has generally operated in the past to counter the decentralizing effect of the committee system (another labor-saving device used by Congress). (4) Reduced importance of the parties in Congress, therefore, could result in strengthened committees and subcommittees. Yet strong committees (and the seniority system) have themselves been blamed in the past for producing legislative stalemate. (5) Thus, even if Edwards is correct that party control over congressional governance somehow contributes to gridlock, it is not clear that the default arrangement (if party influence is reduced) would be an improvement. (6)

In addition, although this Essay concerns the use of staff in Congress, it takes no position on what the proper role of staff should be. Some have questioned, for example, whether the prominence of staff activities and influence is consistent with principles of representative democracy. (7) This Essay simply accepts as a given the role staff plays, and explores whether the unelected nature of staff might provide some advantage to help Congress overcome the forces causing gridlock.

Finally, this Essay also assumes, without passing judgment on, the underlying premise of this symposium--the existence of gridlock in Congress. The remarkable lack of productivity of the nation's divided government during the just-completed 112th Congress (2011-2012)--complete with a frantic, ludicrous effort at the very end of the Congress to unwind mechanisms the same legislature had created earlier to force itself to act on fiscal matters--nevertheless followed a two-year period of much greater legislative productivity (when control of government was unified under one party and the country faced a financial and economic crisis). (8) This small sample suggests that the legislature's failure to act in the most recent Congress may be attributable as much or more to idiosyncratic, short-term factors (such as the fluctuating needs of the country (including the presence or absence of a national crisis) or political calculations (or miscalculations)) as opposed to structural defects in the electoral or legislative processes. What is needed to establish gridlock is some baseline measure of "expected" productivity of a reasonably well-functioning Congress under the circumstances in which it is operating. Rather than speculate on the existence of gridlock, this Essay has merely taken the symposium's topic seriously and tried to evaluate constructively one proposal to reduce it.

This Essay considers nonpartisan staff employed in one particular context--within a highly partisan environment such as Congress. The discussion may not be relevant to staff working in other circumstances, such as within a nonpartisan public policy organization. As we shall see, the combination of nonpartisan staff serving partisan principals raises especially challenging questions.

1. PRINCIPAL NONPARTISAN PROFESSIONAL STAFFS IN CONGRESS, PAST AND PRESENT

   This Part briefly describes nonpartisan professional staff employed by the congressional committees and a number of legislative support organizations. The support organizations were created during two periods: towards the end of the Progressive Era (1914-1926) and the early 1970s.

   1. Committee Staffs

      Committees officially began employing staffs in 1856 when appropriations were approved for both the House Ways & Means and Senate Finance Committees (which at the time still had jurisdiction over both appropriations and revenues). With the exception of the appropriations committees (formed after the Civil War), most committees in the latter half of the nineteenth century had few staff, and they were almost all clerical or secretarial aides (including many patronage appointments). By 1913, there was a total of only about 300 mostly nonprofessional aides in the House and Senate spread among 135 standing committees, and the number and type of staff remained largely unchanged for the next three decades." During this period, the committees received some professional help not counted in the official records from both executive agencies and private groups. (10)

      The Legislative Reorganization Act of 1946 (11) marked the formal beginning of professional staff for the committees. (12) One of the purposes of the Act was to give Congress its own source of professional expertise, independent of the executive branch and private interests. (13) The law authorized each standing committee in the House and Senate (other than the appropriations committees)

      to appoint, by a majority vote of the committee not more than four professional staff members ... on a permanent basis without regard to political affiliations and solely on the basis of fitness to perform the duties of the office; and said staff members shall be assigned to the chairman and ranking minority member ... as the committee may deem advisable. (14) The decision to appoint staff "without regard to political affiliations" was consistent with congressional practice at the time. The appropriations committees had long hired on a nonpartisan basis, (15) as did legislative support organizations (described below) that had been created by Congress prior to 1946.

      Subsequent to the 1946 Act, staffing practices on the congressional committees varied. At the beginning of the 81st Congress (1949), when Democrats took control of each chamber, about one-third of the professional staff of the committees turned over, giving some indication of the politicization of such staff at that time. Galloway estimated in 1953 that about half of the professional staffers appeared to be competent and well-trained, but the rest were hired for political reasons. (16) Committees generally followed two different patterns in hiring professional staff. Some hired staff to help with particular topics, whereas others allowed the majority and minority party members to make separate hires (even though the 1946 Act did not contemplate this practice). As a practical matter, hiring by topic became an effective way to prevent the minority members from having any staff since the topics of the committee were largely chosen by the chair and majority members of the committee. (17) The 1946 Act gave the power to the committee to appoint staff (and divide them between the majority and minority), which meant that the majority party controlled both decisions. In some committees, the decisions were made exclusively by the committee's chairman, with only pro forma approval by the other majority members of the committee. (18)

      In part to address minority party rights, the Legislative Reorganization Act of 1970 increased the number of professional staff for each committee to six, and specifically designated two staffers to be controlled by the minority party. (19) Thus, if 1946 was the formal start of the use of professional staff in the committees, 1970 was the formal switch from a "nonpartisan" to "bipartisan" structure. Despite designating certain staff for the majority and minority parties (and giving control of them to each party separately), the 1970 Act still provided that professional staff be appointed "without regard to political affiliation, and solely on the basis of fitness to perform the duties of their respective positions." (20) The number of professional staff per...