Feb 282023

Back in December, Scott Adams (of Dilbert fame) posted a tweet commenting on the general dissatisfaction on the budget omnibus bill that had recently passed.  It’s a surprisingly interesting problem, because Congress largely sets its own rules, so any change can be just as easily undone or even ignored in the name of an “emergency” or “extenuating circumstances” (which are incredibly easy to find if you don’t want to live by the rules). In other words, how do we convince people to act against their own self-interest without having the direct power to set the rules they’re operating under? I think there’s a potential solution, but it’s going to hinge on several states getting on board.

The assumptions

I’ll start with the assumptions underlying my thought process. The first is that Congress has no desire to change the current funding-by-omnibus system that’s used now. If they did, they’d actually change things – Congress has the authority to set its own rules. Blocking massive, pork-stuffed, unreadable and unreviewable omnibuses is entirely within Congress’s power if they decided these types of bills were a problem. The fact that they haven’t indicates Congress doesn’t view this sort of thing as being particularly bad. It’s worth noting that, in theory, the 2023 House of Representatives did pass rules to try to ban this sort of thing again, but time will tell whether or not those rules will actually hold – I’m highly doubtful they will.

Another assumption I’m making is that relying on Congressional rules isn’t going to work. Given that Congress has no desire to do anything differently, they can’t be relied on to stick with any rule changes that stop this sort of behavior. Even after passing rules that supposedly prevent this, there’s nothing really preventing them from ignoring the rules because of an “emergency” or “extenuating circumstances” (regardless of how contrived, or self-inflicted).  People who make the rules have the power to make the exceptions to the rules, so if we’re intending for something to actually bind Congress, then it has to come from outside Congress.

The last assumption I’m making is that the funding-related issues are a symptom of bigger problems. Congressional approval hasn’t been higher than 40% since February 2005. You don’t get to be that disliked because of drama around passing 1 particular type of bill. You get that disliked for getting things wrong consistently. As unpopular as Congress is, there’s no real consequence for this – once people get into Congress, they get re-elected consistently. In other words, there’s currently no meaningful penalties for poor Congressional performance. This gets to Adams’s identification of this as a system design and incentives problem.

Possible fix #1 – Constitutional amendment around government funding

At this point, you’re probably assuming I’m referring to the balanced budget amendment proposal, but if there was any political will to make that happen, it’d have happened by this point. What I’m proposing is an amendment that bans funding the government via continuing resolution or omnibus bill. Congress has to pass a budget, using the standard set of budget breakdowns. If it doesn’t, the government shuts down until Congress does its job. No workarounds, no stalling, no last-minute must-pass cram-through piece of legislation where Congressional representatives can jam any unpopular idea they’ve ever had but never convinced anyone should be funded.

The obvious problem with this approach is that Constitutional amendments require 2/3 approval from the houses of Congress. If Congress has no interest or inclination to fix their process, they’re certainly not going to be inclined to vote for an amendment requiring they do it now. I’m ignoring the 3/4 state ratification process – I’m guessing that regardless of general public sentiment most state legislatures would oppose the amendment on the grounds that most of them would like to get “promoted” to Congress, where there’s incentive to not do this. Also, this fix only addresses spending bills, which we established earlier was really just a symptom of bigger Congressional dysfunction.

Possible fix #2 – Congressional quotas

Another option is some sort of quota system, where Congress has to vote on a certain number of pieces of legislation by certain points, with deductions in pay and recesses being cancelled for failing to hit their numbers. Funding bills would count for some number of these. This would obviously require a Constitutional amendment as well to be enforceable, which means it has all the same failings as potential fix #1, plus the fact that this would easily incentivize “busywork” legislating, or proposing horrible bills that get voted down overwhelmingly, if not unanimously, just to hit the quota. It also runs the risk of Congress messing with stuff just to hit their numbers and say they’re “doing something.” Whereas potential fix #1 was just unworkable, this turns bad easily.

Possible fix #3 – A new approach to primaries

Both of the previous suggestions tried to target the issue at the Congressional level, but oversight of Congress (at least in theory) ultimately belongs to the people. Congress has remained thoroughly unpopular for years, regardless of what parties control it, and yet the same people keep getting re-elected. In the end, people hate Congress as a whole, but are OK with their representatives, which means there’s no motivation to do anything differently. The good news is, because elections are all run at the state level, states could change the eligibility requirements for Congressional candidates without having to go through the Constitutional amendment process and without getting approval from the very people whose job performance we’re thoroughly unsatisfied with.

There’s 2 flavors to this proposal. The first is some sort of general referendum on Congress as a whole. This could either be determining if there’s a majority that approves of Congress, or just a simple vote of confidence in Congress as a whole. If Congress comes out on bottom of that referendum (net unfavorability rating, or a majority voting “no confidence”), then current office-holders are barred from seeking re-election, forcing new representation in the legislature. For this to work, we’d probably need an interstate compact (like the national popular vote one).

Unlike Constitutional amendments in the first 2 potential fixes, the interstate compact isn’t required to make this enforceable, but it is needed to make it effective. In theory states could do this individually, but 1 or 2 states doing this won’t have the power to shake up Congress, and will just end in their representatives being sidelined as much as possible. On the other hand, with a strong enough contingent of states participating, and I don’t think you’d need more than 10 – 15 to make an impact (most of that is to make sure you can shuffle Senators), you can probably threaten to shake things up enough to change representative behavior.

Another issue is figuring out how to schedule the primary season around this. You want your referendum close enough to the election to matter, but far enough out that you can still have a primary process if (OK, when, particularly at first) Congress fails. Ideally, states could use this referendum to force an abbreviated primary season, but the reality is the people who would be most impacted by this (the actual Congress-people) are the people who need the least amount of work raising awareness of themselves and their platform, so I’m not really sure this is much of a concern.

Another approach to this same idea is for states to just pass a law that says incumbents will not be allowed to run for Congress if Congressional approval rating in the state is below a certain threshold. Like the original iteration of this proposal, it works best when a lot of states do it, but this version skips the formal referendum process and removes the overall dependency on getting a lot of states on board, although it’s not going to be effective at first, and that state is going to see less influence in Congress in the immediate aftermath.

The biggest flaw to this idea is people voting that they’re in favor of the current Congressional makeup simply to protect an incumbent who happens to belong to a preferred party. Never mind the fact that only the sitting representative is banned from the ballot (the party in question just needs to run someone else), the attack ads that say voting “no confidence” on Congress is a vote for (other political party) basically write themselves, and most people are easily fooled enough to believe them. That alone makes the second version of this seem like the way to go, an automatic trigger based on established polling, aggregated across multiple sources, would help prevent attempts to screw with determining if incumbents get to stay on the ballot or not.

The big benefit to this approach is that it addresses governing as a whole – it doesn’t matter why people are dissatisfied with Congress, just whether or not they are. Congress is incentivized to be responsive to everyone they represent rather than the donor and activist wings of the parties. In short, it shifts the constituency that actually matters back to the public at large.

Reframing general dissatisfaction with Congress as an incentives problem forces an examination of how to enforce oversight on a body that literally writes its own rules, as well as everybody else’s. Outside a Constitutional amendment, there’s also voting, but that’s generally failed to hold Congress in check. There are probably several good hypotheses as to why voters keep their incumbents while expressing dissatisfaction with Congress as a whole, but I think forcing some shake-ups on the ballots will go a long way to forcing some changes in Congress, 1 way or the other. And at this point, forcing some semi-regular shake-ups is probably going to do more for good governance than anything that could be proposed from within Congress.

 Posted by at 11:45 AM