Those who blame the quarrels of the Senate and the people of Rome condemn that which was the very origin of liberty. They were probably more impressed by the cries and noise which these disturbances occasioned in public places, than by the good effect which they produced. . . From the time of the Tarquins to that of the Gracchi, that is to say, within the space of over three hundred years, the differences between these parties caused but very few exiles, and cost still less blood. . . only 8 or 10 of its citizens sent into exile, and but a very small number put to death and even but a few condemned to pecuniary fines.
Machiavelli, the Discourses (1513)
CONGRESS SEEM NOT at all as well-behaved and orderly as the Supreme Soviet of the Soviet Union. So the naive may imagine it to be in the throes of self-destruction. They forget an ironic lesson of history: The most lively and powerful of institutions are in constant turmoil and struggle. Someday there may be discovered a way to govern well without squabbling, but history will contribute few precedents.
The Athenian democracy was turbulent, yet immensely productive and militarily strong. The Roman aristocracy was fratricidal but produced time after time the necessary contingents to destroy foreign opposition. The English nobles exiled, slew, and dispossessed one another without halting the steady rise of England as an international power in the 15th, 16th and 17th centuries. Congress can be a forceful and creative institution even though politiking, filibustering, conniving, compromising, "wheeling and dealing" are its everyday processes.
Here we discover, as in other parts of American government, that the gap between the stories told to schoolchildren and the true story causes unnecessary hardship to the republic. Congress must not only survive, but it must carry too great a burden of myth.
So valuable and scarce a commodity as political power is rarely earned and spent in tranquility. Despotisms, we know too well, may lend an impression of quiet dominion, but, through the telescope, show the most intense struggles occurring around the central points of power. And, from time to time, revolutionary explosions shake the peaks of society and reverberate through the plains below.
It needs repeating: Congress is the most exposed branch of government. Its operations are evident. Its audience may be fooled but is not thereby to be made reverent. Thus emerges a great difference between Congress and the President and Civil Service. The misconstruals of Congress work against it; the myths of the executives work for their greater power.
A recent study by Professor Kenneth N. Waltz on Foreign Policy and Democratic Politics displays this situation in the area of foreign-policy making: "The American system . . . throws questions unresolved by the parties or the electoral process into the congressional arena. Congress, openly wrestling with problems that have no solutions and publicly pondering the imponderable, is in ill repute for the way it does the job. It is not incompetence and obstructionism that gains Congress its bad reputation but rather its visibility together with the difficulty of the tasks it undertakes. In the United States we know comparatively little. . . of ignorant and silly suggestions that executive officials may have made and fought for within the bureaucracy." [ FOREIGN POLICY and DEMOCRATIC POLITICS (Boston : LITTLE, BROWN & Co., 1967), p. 117.]
What can be a more important and destructive misunderstanding than the view, repeatedly attacked in these pages, that Congress has surrendered its powers? Congress has surrendered its image of power, not its powers. And that loss considered alongside the fact that on the executive side there have been accruals of strength in the presidency and civil service, helps erode the foundations of republican government. To put the matter another way for devotees of game theory, "Congress vs. the Executive" is not a zero-sum game; each set of elements is fed or deprived by other sets of elements in the society and from creative institutional changes.
Legislation is, as William James suggested of democracy as such, a business in which you do something then wait to see who hollers, and then relieve the hollering as best you can to see who else hollers.
T V. Smith, The Legislative Way of Life
Previously, Congress was shown to be an active, indeed the principal, source of legislation in modern times. When compared with earlier Congress, it is clear that Today's Congress is of undiminished strength.
Suppose, for example, that a recent Congress, the 87th, is contrasted with a very early one, the 4th. A comparison of the titles of laws passed by the two gatherings might suggest how alike were their powers.
A comparison of the work of the 4th and 87th Congress for indications of the scope, domain, and intensity of powers exercised in major actions taken by each. (Both lists are partial)
|4th CONGRESS (1795-96)||87TH CONGRESS (1961-62)|
|Type of Law: I.Government|
|1.||Pay of Congress and other Organization officials||Enlargement of Rules Committee|
|2||Pension Act||New Federal Judge-ships created|
|3||Altering Circuit Court Sessions||Vs. Poll Tax as Vote Qualifier|
|4||Mint Operations Regulated||Adding Original Jurisdiction to District Courts|
|5||Admission of Tennessee||Appropriations for operating the government Compensation of jurors, etc.|
|6||Appropriations for operating the government Accounting systems for Contractors and others||Charges of conflict of interests and bribery laws|
|Type of Law: II. Armed Forces|
|1||Lighthouse Construction||Loans for mass transit facilities|
|2||Buoys in Boston Harbor lands||Public works (airports, water pollution control)|
|3||Acts of sales of public lands||Communications satellites act|
|Type of Law: IV. Welfare|
|1||Act on quarantine||Raise in minimum wage|
|2||Act on relief and protection of seamen||Loans and grants to depressed areas; also public works|
|3||Act for relief of persons imprisoned for debt||Housing loans|
|4||Land grants to missionary societies||Unemployment pay period lengthened|
|5||Emergency relief to owners of stills||Manpower retraining|
|6||Licensing and regulating the coasting trade||Sundry benefits for disabled veterans, blind, deaf and other groups|
|7||Pensions for disabled veterans||Drug industry regulation|
|Type of Law: V. Foreign Affairs|
|1||Act to regulate trade and intercourse with Indians and preserve Peace on frontiers||Increased mutual security aid|
|2||Affirmation of legislation regulating U. S. foreign affairs machinery||Peace Crops and Alliance for Progress formed|
|3||Passports for U. S. ships||Arms Control and Disarmament Agency created|
|4||Special appropriations for President to deal with Algerian diplomacy||U. S. to cooperate with OECD|
|5||Adjustment of claims from war damages |
Setting up trading posts for Indian trade
|President authorized to lend to UN|
|Type of Law: VI. Taxes and Revenue|
|1||Extension of time for debt assumption||Tariff adjustments|
|2||Loan to Washington, D.C.||Tax Credits for investment|
|3||Reorganization of customs collections|
|4||Duties on passenger conveyances|
The general nature of the changes over five generation is fairly apparent. Three broad similarities reveal themselves:
1. The scope of intervention and activity into various areas of society and individual lives seems equally broad at both times. Spending to find agreement with the Bey of Algiers is not less radical than the Alliance for Progress.
2. The proportion of the population affected and the extent to which it is affected seems alike. The domain and intensity of power has not changed much. Rescuing distillers from economic troubles is as sharp an intervention as assisting a depressed area. The Indian trade affected as large a proportion of Americans as foreign trade does now.
3. The complexity of decision, given the available means, appears not to have changed much over time. It is unlikely that the average congressman of the 4th Congress could do a better job locating and building a lighthouse off Cape Cod than one today could do on a space satellite. Both would hasten to hire the "know-how." The general public is awed and frightened by complexity; Congress could once run an army of a million loosely disciplined troops and govern a country bursting in all directions, but is mistrusted with a missile base or skirmish in Viet Nam. Yet they give a boy a hundred times as many horsepower to ride as his grandfather had. Is there behind this, not logic, but a failure of nerve?
The differences between then and now are nevertheless important.
1. Government assumes more responsibility for human welfare nowadays. Housing, unemployment, depressed areas, and manpower retraining are examples. These are details of scope. They are critical details because they are at tension points of greater involvement of personal hopes and fears.
2. A greater assumption by government of administrative tasks, resulting from new and continuing programs is evident today. Foreign aid programs and all the other projects just cited are examples, together with built-in programs such as agricultural subsidies and social security. This means enlarged possibilities for the continuous accretion of personnel and activity.
One conclusion may be that Congress is no less capable of handling the nation's business today than it has ever been. Another may be that the rooting in government offices of hopes concerning personal problems is a prime cause of favorably changed public attitudes toward an administrative establishment. Still another might be that only formidable machinery can prevent the unguided accretions of powers by the administrative agencies, machinery which are not part of the classical equipment of Congress.
The powers of Congress, it is plain, are numerous, and they can be expanded and limited within a broad area, even in the short run. In the long run, they can grow still broader and larger. At the same time, they can be increasingly exercised at the initiative of the executive branch and in a jungle of powers already held by the bureaucracies.
The limits today are broader than they were originally. Politicians of 175 years ago would have been shocked at the license Congress has acquired and the courts permitted. And each licensed area is only barely occupied to this time. Much more could be legislated in each area, extending the scope, weight and domain of congressional and governmental influence on American life. Here are some of the things that Congress could do within its present powers if it wished :
It could transform the Supreme Court and federal court system.
It could materially affect the existence of political parties.
It could greatly restrain the President.
It could enlarge the civil service greatly or cut it back greatly.
It could make America a socialist country.
It could force organized religion to live a precarious life.
It could militarize the people.
It could restore the earlier and independent kind of federalism.
It could give up numerous rights to foreign powers and international organizations.
It could level the income of the American population to a very narrow range of differences.
It has all of these powers and more. Yet it is generally conservative, moving with reluctance into all of these fields. For it is under severe self-restraint, more so than the presidency. The President uses his powers to the hilt; Congress uses only a fraction of its powers. And when Congress uses its powers, it tends more and more to use them in a way that promotes the growth and power of the administrative establishment and thus to further limit the possible direction of new legislation in the future. It hastens its own demise.
Congress is caught up in the great world-wide tide of centralization and collectivism, despite what amounts sometimes to hysterical resistance to the tide. In 1796 and thereabouts, when Congress was legislating at a not much different pace and with no more force than today, the powers not used and the powers not possessed were exercised by the local governments and non-governmental associations and individuals. They were scattered over the country. They did not enter the vaults of the bureaucracy. Since governmental power, no matter how rarely employed, is nearly always stronger than non-governmental power, congressional supremacy could not be said to have been threatened by the broadest and fastest grants and sales of political rights and obligations.
Once, however, that the created powers began to lodge in the halls of government, every new creation added to the competitive power of the administration. Unlike corporations, local governments, voluntary associations, individuals, the administrative establishment contains in its and nature the magic of sovereignty and the majesty of the law.
Strong prejudices of any kind; obstinate adherence to old habits; positive defects of national character, or mere ignorance, and deficiency of mental cultivation, if prevalent in a people, will be in general faithfully reflected in their representative assemblies: and should it happen that the executive administration, the direct management of public affairs, is in the hands of persons comparatively free from these defects, more good would frequently be done by them when not hampered by the necessity of carrying with them the voluntary assent of such bodies . . . [yet] It would be absurd to construct institutions for the mere purpose of taking advantage of such possibilities.
J.S.Mill, Representative Government
Far from being a simple thing, the supreme legislature of the United States is a structure connecting hundreds of groups, both formal and informal. Piled one upon another are blocs, parties, committees, sub-committees, cliques, state delegations, friendship groups, breakfast clubs, and sports groups. Groupings are based further on religion, region, occupations and ideology. They tie in hundreds of staff members. They weave into the executive establishment and through the entire country.
With a myriad of groups in the legislative system and a set of great powers, exercised far below capacity, one may suspect that there exists within the whole a divergency of views and interests. Such is, of course, the case. Only by great exertions can Congress develop a program of its own. Only by assiduous work can any group within it achieve success. It is no place for the casually dropped idea that is picked up because of intrinsic merit and adopted. "I don't believe" said one respected strategist, "there is any man in the House who can do a really effective legislative job on more than two bills in a year." [ Clapp, op. cit., p. 107.] But then there are few places for facile reform anywhere in the institutional world.
The moving shaft of the congressional force is the oligarchy. Let us call it the "leadership" to be polite. This group would include the Speaker, floor leaders, and committee chairmen in the House and a looser establishment in the Senate. The partisan organization of the two chambers excludes one or the other party all the time, but minority party leaders might as well be included in the definition; they would, after all, be officially leaders but for the grace of a few votes here and there, and next year they may well be in authority. Perhaps the chairmen of sub-committees on appropriations should be included. Actually, at any given time, a better way of determining leadership is by asking a sample of third-term congressmen and four-year-plus Senators to name them. Summing up their nominations, like counting election results, would give a fairly accurate listing of the oligarchy. The results of this so-called sociometric test would relate closely but not perfectly to the purely formal test used here.
Both chambers are run rather more democratically now than fifty or a hundred years ago. Both the oligarchy of the two houses and the Speaker are less in command. Writers ordinarily applaud Woodrow Wislon's emphasis upon the power of committees in running the work of Congress. This he stressed in his Congressional Government, published in 1885. He discovered a phenomenon that had been present in varying degree for a half century. Early in our history, the committees had much less power. Congress was small enough to permit more informal government and fewer sub-groups. It spent less, and permitted itself then as always the luxury of many individual contacts with the bureaucracy.
During and after the Civil War, with an extension of the powers of government and the presidency, committees multiplied and the congressional leadership of chairmen began to formalize. Yet the Speaker was a prime beneficiary of power increments, until finally he was toppled in the famous palace revolution of 1910. When he was overthrown, the victory did not go to the mass of members. As usually occurs in revolutions, both small and big, the redistributed powers went to another group of the elite, this time the committee chairmen.
The new committee system then was regarded as something of a reform of congressional government. If this is borne in mind, some degree of reasonableness can be injected into the discussion of congressional government, which is often and unfortunately posed as a struggle between oligarchy and democracy. We do not beg the question whether the reform is now itself in need of reform. We say only that until the question of the oligarchy is discussed as one of how may Congress function well rather than one of a usurpation of power, we shall not be able to understand or reform Congress. Or, put more bluntly, it is a question of whose oligarchy shall run Congress.
Oligarchy is the sine qua non of all action groups. Some members must have more to say than others. Who says leadership says oligarchy. The House of Representatives is run by an oligarchy. It can be pictured as a pyramid in which a few men hold large powers, a large number considerable powers, and a great number small powers. Congressmen are well aware of this situation. Though there may be some differences of view among Congressmen as to how much power is concentrated in how many hands, the major thesis will be accepted.
Indeed, the last defense of the notion that the principle of equality is important in House affairs, which is the fact that each congressman has only one vote to cast on every issue, is often breached. On some occasions, votes are rounded up, corralled, branded and tallied by and for the leadership. When this process does not occur, it is sometimes because it is unnecessary; the members ask the informed leaders how to vote. Or a revolt may be taking place, a not infrequent occurrence. Or because a member exercises his ultimate right to be a maverick. Or because the personal district problems of a member excuse him from the collective discipline. This is the usual case, since the Congress is committed by its present leadership and history to much more of a consensual policy than the oligarchical nature of the Congress would lead one to believe.
Time after time, members will assert that they are rarely pressured. They are in no sense forced except in a rare emergency, the frequency of which is not known but would perhaps average once a session. Since perforce congressmen vote in groups, the group act is misconstrued to be a proof of the oligarchy at work. Actually the forces of consensus operate independently of the ultimate weapons of the oligarchy. One cannot doubt that the great measure of freedom allowed the member of Congress in his voting both explains and determines the quantity and quality of legislation.
Legislation that some group, perhaps the presidential group, wants in an anguished way, as "a key part of the President's program" flounders about, is nipped at and altered, and may or may not emerge into law, and if so, rarely on schedule. The fault may not be in the oligarchy, for this happens often when the oligarchy is committed. But the oligarchy may be committed to the single piece of legislation, not to the destruction of the belief-system of Congress. It may favor a bill of the presidency but not the imposition of oligarchy beyond the normal level of pressure, usually expressed in words such as "we'd like you to go along with this if you can see your way clear."
A close-up view of the oligarchy will-give some impression of how its members differ from the rank and file of Congress, and the other elements of the elite that we have discussed. The leadership of Congress, the total number of which, defined as above, is ninety-two, averaged about 61 years of age in 1964, compared with an average age of 53 for all congressmen. Does eight years of difference in average ages produce some critical difference in ability and views? Perhaps in special cases. It certainly causes some discontent among the young, but then the old may not tolerate youth well either. Congressional leaders are older than business leaders, on average, and older than bureaucratic and especially military leaders. The average age of the President in the years 1900-1965 has been 57.3 years. But again these are facts without much meaning. The dream of youthful leadership will always remain a dream, at least statistically, and of those youths who are plucked from the ranks to live the dream, some will succeed and other will fail. Half the adult population is below 29.5 years old; they must abide the older half, which possesses power and dignity.
The leadership of Congress is chosen by a process usually summed up in an expression hateful to rationalists-the seniority system. But recent studies have gone far beyond early descriptions and have painted a more complicated picture of the seniority system. Whereas at one time it was believe that the progression of members to positions of leadership occurred depended solely on unbroken tenure of a seat in the chamber, now seniority is seen only as the major criterion in a relatively flexible system for filling posts of leadership. Nicholas Masters tells us from his studies of the House that both Democratic and Republican committee assignments are handled by
Small groups composed of senior members appointed and greatly influenced by the party leaders. . . . Party leaders, working in conjunction with their committees-on-committees, use assignments to major committees to bargain with the leaders of party groups and factions, in order to preserve and fortify their leadership positions and conciliate potential rivals, as well as to reward members who have cooperated. Assignment to the major committees is restricted, with some exceptions, to members who have served two or more terms, who are 'responsible' legislators, and who represent districts which do not require them to take inflexible positions on controversial issues. . . . Although a number of factors enter into committee assignments-geography, group support, professional background, etc. - the most important consideration-unless it can be taken for granted-is to provide each member with an assignment that will help to insure his re-election. [Nicholas Masters, "Committee Assignments in the House of representatives," Ameican Political Science Review, June 1961, pp. 345-357.]
Other experts on the committee process, such as David Truman and George Goodwin, would probably agree with this analysis.
No enduring institution in history operates on other than a seniority system: this fact seems to have been forgotten in the clamor to reform the congressional seniority system. To put it another way, almost without exception, whether in the fifth century before Christ in Greece and China, or in China and the United States today, whether in churches or armies, labor unions or universities, factories or newspaper plants, leaders have been members longer on the average than followers. Since being members longer implies chronological aging, leaders are usually older than followers too. Therefore just as leaders are plagued is almost always visited by the infirmities of old age, by the same token followers are plagued by the vices of youth. Whether one is worse than the other depends again on what one wants to come out of the group process he is considering, in this case the legislative process.
The employment of seniority in Congress is actually congenial to the functioning and purposes of the institution. It places the institution as far away from the reach of the presidency and partisan politics as possible. It prevents ignoramuses from being charged each two years with the running of an intricate machine. It makes the control of the vast executive branch of government a possibility instead of a macabre joke, for some semblance of continuity and expertness in this most difficult set of tasks is maintained.
It ensures the exercise of influence on the part of minorities of various kinds. Minorities are usually found in safe districts-whether the minorities are dwelling in the southern hills or in northern Negro neighborhoods, farming beets or raising oysters. But the case would better be put as follows: America is composed of minorities; this is no rhetorical concept; it is a highly complex and diversified country in nearly every imaginable sense, ethnically, religiously, economically, climatically, ideologically, characterologically, socially, occupationally, and so forth; every one of these interests has some public voice by means of one or more congressmen.
If we had command of a variety of statistics unfortunately denied us, we might venture to say how many voices would be muffled by a substitution of a "merit" system or popularity system for the seniority system. Perhaps half of the variety of interests voiced in Congress would be eliminated by the destruction of the seniority system. The theoretical mechanics are clear: popularity would introduce the President's men, for who can be more popular in Congress than someone embraced in the public light by the President? The President's men would present the President's "program"; the President's "program" consists of those measures calculated to favor those interests clustered in his national plurality plus those of groups whose allegiance is in doubt. This collection even when broad, is far from achieving the diversity of the Congress under the seniority "safe seat" plus modifying factors system.
As for merit, any "merit" test that does not reduce to a popularity, or a bread-and-butter, or a seniority test is unknown to political systematics: It can be conceived, but its realization is an impossibility in government; where merit will enter, it is the sporadic effect of whoever, under whatever the existing system may be, has both power to influence appointments and uses it for the "public good." The only place the merit system can be exercised as such is in the first grade of grammar school.
The seniority system then is many things plus a correlation with years in office. Since this system lacks another name, it may as well be called the seniority system. And since the delicate instrument that could create the whole desired combination of traits in the leadership has not been invented, the seniority system, often a blunt instrument to be sure, is employed.
It would be wrong to think that the old rulers of Congress do not possess the respect and even loyalty of their less influential colleagues. Even among politicians, to whom loyalty is a costly virtue, there is a considerable devotion to the oligarchy. This shows in interviews among congressmen, as contrasted with, say, interviews among junior executives in business firms, or professors in relation to university presidents and deans. The loyalty in part comes from the respect held for the seniors, which in turn reflects first the deference and respect which are given the less influential colleagues by the experienced members and the skills possessed by the leaders.
A gulf yawns between the general public's estimates of various congressional leaders and the estimates of them made by other congressmen. Whereas mass media are judging a man by his colorfulness a la mode and his advocacy of popular ideas, the Congressmen are judging by internal civic merit and skillfulness in the legislative process. Not that lofty qualities of humaneness and philosophy are ignored by the one or the other, but the emphasis in each case is different.
The congressional leadership is almost indistinguishable in educational background from the rank and file. Most have a college degree. One-fifth of Congress calls itself Methodist; over one-fourth of the oligarchy is the same. Baptists are not so overproportionately present. Catholics are slightly underproportioned in the whole and among the leaders, being 13 out of 92 and 99 out of 533. Jews are now scarcely underproportioned in either membership or leadership. Some of the Methodist and Baptist members will be reapportioned out soon.
What part of the religious designation is typically translated into public policy is not clear. Merest speculation might suggest that, should the Catholic members increase, an increase in earthly pessimism, a drive for security, and a somewhat greater respect for organized voluntary associations will perhaps be noted. The effects of an increased Jewish affiliation would go almost entirely to polishing up Congress "mirror image" of the nation.
At the same time, we can say that religiousness is mostly a verbal confession of congressmen. No one should speculate on such internal matters as spiritualism, perhaps, but it is obvious that questionnaires will not answer the question whether Congress is a religious body. It is probably somewhat less religious, on the average, than the population as a whole. But this religious weakness is not perceived, because it is on all fours with the secularism of political science, American social theory, and the American intellectual tradition. It is correct, in the sense of good social manners, to be restrictive of the role and activities of religion in society. Only some of the Catholic members seem to feel that their religion provides an alternative world-view to the conventional majoritarian beliefs. Secularism will continue to grow under present and expected conditions. The anti-religious interpretation of the First Amendment grows stricter as other clauses of the Constitution, such as the Fourteenth Amendment, become devoid of fixed meaning, all at the hands of the same Supreme Court.
Occupational groupings also are not evenly proportioned in the Congress. The fact that so many congressmen are lawyers is too well known to dwell upon. Little change is likely here. The number of scientists-natural and social-is gradually increasing and is perhaps proportionate to the number in the population. The oligarchy is not extraordinary in these regards. Actually the oligarchy may be more urban than the Presidents, six of the last eight of whom have had rural origins; perhaps those who make so much of "rural backgrounds" statistics can make something of this. There is not much disproportion of leaders who come from districts of heavy farm population. The proportion of farmers and farm managers found in House leaders' districts is a fifth higher than in the country's population as a whole and a little higher than the proportion found in the districts of the rank and file.
If the urban composition of the states of the Senate leadership is examined, it appears to be considerably less than that for the country as a whole, 60% versus 70%. The House leadership, however, shows the largest difference from the House as a whole and the population. Over half of them come from rural districts, 58%. Fourteen percent come from suburban districts and 28% from urban ones. The proverbial rural bosses of the United States seems to be tracked to their lair at last, in the House leadership!
It is not easy to specify the effects of the disproportionate rural cast of the leadership. Certainly farmers get benevolent attention, more perhaps than they would otherwise received. Also, the leaders of Congress appear to be somewhat untypical of the American people, in this rural quality, statistically speaking. But, of course, no leadership group is typical. Labor union leaders, priests, and other elites are by no means mirrors of their constituents.
Moreover the substitution of urban for rural legislators may result in the selection of more urban representatives, who would turn out to be less typical of either the whole or their own population than were the displaced rural legislators. That can readily happen when a legislator comes from a minority within his district, such as a labor movement, a church group, a real estate group, and so forth. Or when he is a lawyers who represents large-scale but socially limited interest.
A twenty percent difference in the composition of Congress, to conclude, is statistically significant but behaviorally may convey few important effects. Certainly the quality of the individuals who leave or enter the congressional club is a much more important factor in the production of results. So is the way in which the members-whether rural or urban-are organized to get work done.
The means by which a majority comes to be a majority is the more important thing.
Samuel J. Tilden
From who legislates to how they legislate is an easy step. Many people take the step backwards: Considering how they legislate, the legislators must be a strange and poor lot! The process of making laws appears to be unspeakably complicated.
But the reader is already conditioned against this error. He knows that the presidency and bureaucracy are typically as slow and tortuous in their formulation and determining of policy as Congress. Their operations, however, are concealed beneath the skin of a single personality, the President, who because he is a solitary figure, seems active against the dim huge backdrop of big government.
What is to be newly established here is the meaning of congressional procedure in all its complexity. It may be stated as follows: Congress operates principally through the decision system of successive majorities. For governing a society and for representing a society this method is superior to both the traditional method of the executive and the populist representation of the President. The method is more modern than the others. Ultimately, in a thousand years, if not in ten, it will prevail.
The meandering careers of bills should be examined in this light. Seemingly no greater condemnation can be visited upon congressional procedures than the limited representativeness of a particular committee, say, the Rules Committee of the House. To think that a single chairman can block the national will is intolerable (we pause to remind ourselves that the chairman is only a single man in the sense that the President is a single man and the national will is a term that can only begin an endless argument over who represents what). Moreover, to see this fate of the legendary wandering Jew visited upon one's favorite bill seems to prove that congressional procedure is only a form of persecution; from one committee to another, from one hopper to another; first here and then there on the legislative calendar, and when it passes one house, it must go to another, and when it passes both it must go into a conference committee of both houses to adjust the differences and alter the whole, and even so the activity may now be merely authorized, because to get money the idea must risk another set of committees and individuals. How can all of this be justified?
It cannot if it is viewed as just stated. But in a constructive sense, when we consider that reasonable men have created this system over centuries of time, an element of rationality can be found in the system that may not only be understandable but that may prove the system to be superior to competing methods of processing important decisions in society. The very procedure of moving from one man to another, from one hopper to another, from one committee to another can be pictured as a process of achieving successive majorities.
The Trade Expansion Act of 1962 can illustrate the process. Begun as a House Resolution (HR 11970), it passed through the Rules Committee, the Ways and Means Committee, the whole House, The Finance Committee of the Senate, the Senate as a whole, a Conference Committee, and again the two chambers before arriving for signature at the White House. Many amendments were rejected and many made. Numerous controversies occurred. In the Rules Committee, one kind of microcosm of the country worked upon it, in Ways and Means another. Approvals by majorities, applied directly or implied, carried the bill in and out of committees and passed upon each change. Except where an officer presumed to be responsible to the majority of the House and possibly of the country acted in a solitary capacity, all actions were plurality or majority actions. Over ninety separate actions of a majority character were taken, in committees or on the floor.
The Civil Rights Act of 1960 affords another case. Here a House Resolution (HR 8601) was culled out of 39 bills on the agenda of the Judiciary Committee (and Subcommittee). The bill went to the Rules Committee where it met strong opposition. But the threat of a Discharge Petition to force the Bill out of Committee impelled the Chairman to release it. Then followed a stream of actions, each bringing another side of Congress to the process of consultation and voting. Seemingly everything that could happen happened to this Bill. A filibuster took place in the Senate. A vigorous struggle occurred between some House and Senate leaders. Finally after about one hundred and ten successive actions formulating majorities of one kind or another, the Act was approved for presidential signature. Most major laws have received similar, thorough processing.
Congress, that is, does not achieve representation in one full swoop, one grand flash of illumination, as the executive may sometimes do, nor by an easy reconciliation of prejudices with decisions as occurs in the presidency or bureaucracy or Supreme Court. Such sublime self-delusion is not permitted Congress. In the congressional process, a will has to prove itself through a chain of subjective wills and thus become a will that is "objectified," in the sense of a Supreme Court decision or a presidential order.
It is submitted that this procedure is not chaos. It is not irresponsibility. It is not unrepresentative. It is not against the national interest. It is none of these, save by definition. Rather it is a way of doing business that is elegantly and elaborately suited to the kind of business that is to be done. It is a great demonstration of the pragmatic and operational philosophical thesis that the means and the end ought to be reconciled and alike. Here it is republican principles being enacted by republican means.
Very few men in the world are conversant with the rules of the House and the Senate. Few congressmen are. Yet it would be fallacious to think that these rules are too complex to have reason in them. They are complicated precisely because they have to reconcile irreconcilables. They have to do something that neither the President nor the executive establishment has to do: they have to promote equality, pluralism, consensus, and at the same time produce decisions, acts of will of moment to the whole society. The constant accretion of rule, the innumerable small exceptions and change, the whole procedure of the House Rules Committee which significantly has to pass a special rule to get an ordinary important bill of the type Congress was created to enact onto the floor-all of this signals the throes of creativity of a kind peculiar to Congress.
Given the philosophy of republicanism, the oligarchy is an efficient idea; so are the limitations upon oligarchy; so are the complicated rules that seek to apply multiple and conflicting values at the same time, tearing apart and reconstructing the same principles of one . . many . . all . . one . . many . . all, in endless succession. The system of successive majorities, to conclude, is unique and potentially of wide applicability in many reaches of society and in many lands. It is stabilizing. It is pluralistic. It is powerful when it reaches completion. And it is, in the senses describe, representative.
Weaknesses in the system of successive majorities are not wanting. Its complexity and vulnerability to the simplistic popular mind have already been alluded to. The presidency can also interfere with the process at many points, choosing precisely those points where he knows he can engage popular opinion. The obdurate refusal of many past and present leaders of Congress to countenance any form of cooperation with the President and his advisers stems largely from their experience that such "cooperation" can easily result in a breach of their defenses.
In recent years the presidency has also exerted influence through the Bureau of the Budget. There both political and technical judgments are passed upon a great many bills in the early stages of consideration and usually, when the Bureau expresses itself negatively, a bill will die. The intrusion into the system of successive majorities of this executive device, which has little basis in the Constitution or laws but has acquired great informal weight, has excited Senator Abraham Ribicoff, certainly no foe of the presidency, and other Congressmen into radical protest. [See Ribicoff's Article in The Saturday Evening Post, March 21, 1964, P. 10.] That Congress has submitted peacefully to such executive presumption demonstrates how the Executive Force benefits from drift even more than from diabolism. The Conference committees system is one of the set of majorities that typically has power beyond what is acceptable to majorities of both chambers. It is possible that this situation is inevitable. The main remedy lies in reducing the scope of decision of the conference committees by maintaining and passing closely similar bills in both Senate and House. This is not always possible, not only because the two chambers may have sharply contrasting views, but also because one chamber's version may be exaggerated in order to provide more apparent "surrenders" in the bargaining and compromising of the conference.
There is the further question of the extravagant importance of certain influences in other majority-constructing settings. The domination of a powerful committee by a single man over a long period of time is often regretted. It may not be consoling to point out that the incumbency of a given President may be regretted for eight years by nearly half the people. Perhaps it is not consoling either to read the words of an historian of the House of Representatives concerning the Committee on Rules of the House:
While the Committee on Rules failed to function during the decade under review (1937-1946) as the responsible instrument of majority party government in the House of Representatives, nevertheless it apparently did faithfully reflect majority sentiment in the House. The rules it granted or denied were calculated to facilitate the expression of the will of a bipartisan majority in the House, which may or may not have reflected majority sentiment in the country, while obstructing adoption of the program of the majority party. ["George B. Galloway, History of the United States House of Representatives (New York: Crowell, 1962), pp. 136-137.]
The question then resolves into whether the republican force or the executive force represents the country.
Consolation may come hard. In the end, to be consoled, a person may want only his special majority to win in the legislative struggle. To that end, he may be willing to sacrifice all institutions and principles of government other than his favored ones. There can be no logical refutation of such a position, which is essentially philosophical or dogmatic. He (and others) may be asked, however, whether they are so certain either of the effects of the laws they wish or of the consistently favorable behavior of the institution they would empower.
A related question may be asked of the representation of views in committees, which do 90% of the business of Congress. A committee's roster is prepared usually, as Charles Jones and others have shown by careful analysis, to include members whose constituencies have unusually strong interest in the committee's area of interest. Thus the Committees on Agriculture are ruled by members from heavily agricultural areas. Cotton-area representatives are on the sub-committee that deals with cotton. Is this representation by skilled men; is it interest representation; is it conflict of interests? It is all three.
Pursuing the theory of successive majorities, however, it is immediately apparent that these conditions are all checked before and after matters pass through the sub-committees on Agriculture. Even in the Committee as a whole, diverse agricultural interests will watch and check one another. We note also that "on House Appropriations (in contrast to the practice followed by its Senate counterpart), a congressman generally is not assigned to a sub-committee of special concern to his district, on the grounds that his judgment would be less objective than that of a member whose constituency is less directly involved." [Clapp, op. cit., p. 242.] But this may also be the way in which the fiscal conservatives in Congress can hold down appropriations.
The staffing of committees cannot be said to be well handled, though experts now say it has greatly improved in recent years. There are only 500 people working for all the House Committees, most of them on select committees and special investigations. The number is far too few for the intelligence function of Congress, just as the number of personal assistants is too few for the administrative and constituency obligations of congressmen. Furthermore, the provision for dissenting views on committees is often defective, if full intelligence and representation should be brought to bear upon congressional operations: "The House Science and Astronautics Committee is responsible for the oversight of NASA, the civilian space agency, whose budget this year is $5.2 billion, the fourth largest budget of any Government agency. Yet the Committee has 10 professional staff members, the smallest committee in Congress, and none of these is responsible to the Minority." [Fred Schwengel, "An Open Letter to Members and Friends of the American Political Science Association," September, 1963, p. ] Of course, committees will have dissension among the majority members too, which will promote thought and care. Still the greatest value of the congressional system of successive majorities is its merging of different views in a single decision, the law. The presidency and executive establishment cannot produce anything similar. The system of successive majorities, therefore, must be protected and preserved.
Generalizing is risky. The pattern of representation changes, often subtly, with none of the figures so dearly beloved by scientists, to mark the passage from one condition to another. The cause of change is often "simple": congressmen learn; they adapt; they fashion themselves in a new role. "Members of the Senate Foreign Relations Committee and the House Foreign Affairs Committee . . . tend to be less bound by segmental approaches to foreign policy issues than are other Congressmen. Their special responsibilities in the international field foster a broad-gauged attitudinal framework. . . ." So writes Professor James N. Rosenau, in his book on National Leadership Foreign Policy. [(Princeton: Princeton University Press 1963), p. 355.]
A rich variety of representative forces filters through the system of successive majorities. Neither the presidency, nor the civil service, nor the pressure groups, nor the courts, nor the political party, nor the press could duplicate the process and provide the same "product mix." Perhaps no feasible combination of them could, either.
The process may suffer from not being brought to a focus, so as to achieve technical coordination and to get an improved sensing of the congressional "majority." There is, for example, no formal assembly of congressional leaders. On the other hand, the Speaker and Majority Leader of the House deal with committee chairmen as informal group members, often quite effectively. Whether the group comes together informally or by rule, it should convene in some manner to discuss the prospects of a session, any highly controversial bills, and to formulate proclamations on behalf of the whole Congress, which are to be set forth in a later chapter.
The process of communication between leadership and newcomers has been described as weak. The oligarchy, in the House especially, would appear well-advised to give more attention to assimilating the first and second term members. Since rarely does a leadership which is under pressure act save under greater pressure, and since the normal pressure mounting up presently is directed at the destruction of the independence of the leadership, a devise to create the appropriate pressure is needed.
Pressure is usually more effective when it provides a benefit while asking one. Therefore, one asks: "What do the leaders need that freshmen can provide?" Strangely, it is public prestige. For, while the oligarchs have great prestige in the Congress, they are not respected in the country at large. It is for this reason that, also in a later chapter, a set of Halls of Congress are recommended; in their establishment and management, the freshmen must be agents, while in filling them the leaders are principals. Both groups would gain new public stature.
The world is not led by long or learned demonstration; a rapid glance at particular incidents, the daily study of the fleeting passions of the multitude, the accidents of the moment, and the art of turning them to account decide all its affairs.
Neither the public nor congressmen are apt to take seriously enough the deficiencies of Congress in the matter of planning, programming, and researching legislation. Consequently, a common source of disappointment with legislative institutions and with legislation is not explored and corrected while above there rages controversy of a specious political debate clouds the main issues. Congress lacks the comprehension of research and development in its own work even while it spends 15 billion dollars a year for research and development in the agencies of the executive branch.
Let us look at the ways that a new congressman can acquire information. There are twenty at least of them. He learns, of course, from his colleagues, just as a student learns from his classmates. His family and "nuclear constituency" shape him with information and advice. He forms groups and in the group is educated. He learns through committee staffs, and from the hearings and reports of committees. The pressure groups provide him with services and information. The executive agencies are usually ready to answer inquiries and often provide staff assistance on a temporary basis; their liaison personnel stand ready to assist when required; their dissident members brave retaliation to "leak" information or, as in the Jerry Jackis case, [Jackis resigned from the Agency for International Development in 1963, saying that he had been penalized for provoking a Congressional probe in 1962 by charging that U. S. supplies were used in building a hospital which was a project of the Soviet union. See The New York Times, October 1, 1963, p. 10,] to testify about internal problems before congressional committees.
The mail is a continuous source of ideas and information. The debates are not as uninstructive as many believe. Newspapers, magazines, and books are everyday intellectual fare. Radio, television and films form some small part, but are followed more as plays in the game of politics or for sheer entertainment than for acquiring knowledge.
University professors are used frequently as consultants. Private research organizations may do special studies, especially of the type of a personal public opinion poll. Lectures, meetings, and travel, where the congressman is both teacher and learner, provide many stimuli and much social information. The research divisions of the national, state, and local parties furnish more carefully prepared information on trends of opinion, voting behavior, and political argumentation. The office of legislative counsel provides legal advice and help in the drafting of bills.
The Legislative Reference Service of the Library of Congress, which has doubled its work in the past decade, answered about one hundred thousand inquiries from congressmen in 1963. Other units of the Library of Congress responded to another fifty thousand requests for information. The vast bulk of these are trivial. They may be merely lists of books prepared on a constituent's request for information. On the other hand, many of the reliable and systematic studies that a congressman receives are prepared by the Legislative Reference Service.
The best is none too good. Without exception, the ways of knowing are inadequate and shallow. Only a small fraction of what the scientific method can contribute to informed legislative action is known and used. In this sense Congress is more backward than practically all large American corporations. Business concerns typically calculate carefully and plan systematically before deciding on a course of action.
An example of what regularly occurs is afforded by the Economic Opportunity Act of 1964. Originating with President Johnson as a slogan, "War Against Poverty," the legislation was probably intended to bring high political status to the new President, who had to win popular election within a year, as well as to help the poor. The canny President combined old "New Deal" ideas to appeal to centers of organized voting but disorganized economics in the old industrial areas of Pennsylvania, West Virginia, and elsewhere; he repackaged a number of existing programs in welfare, education, business, and labor; he promised to appoint the governmental "Hollywood Star" of the time, Sargent Shriver, as the program's Director; he and his staff "updated" the phraseology of reform to include many research, experimental, and training programs; and to reduce opposition from local quarters as well as to try not to harm voluntary and local activities, he and his staff provided that the federal government cooperate with local and voluntary groups in many instances. Almost a billion dollars was to be authorized, with promises of a great deal more later on.
The House Committee on Education and Labor was assigned the bill and called in a set of favorable witnesses. Department heads, governors, and mayors attested to its value. Vigorous efforts on the part of Republican members of the committee were required to bring objective and unfriendly experts into the hearings. Only several could come, unpaid, in a hurry, without preparation. The hearings were promptly closed and the bill went to the Rules Committee where questions of a rhetorical, legal, and political nature were asked. In the Senate, a similar procedure occurred. Favorable witnesses were brought in to urge the adoption of the bill. Some persons, noticeably, skeptical or hostile, were crammed in on a moment's notice.
There was no systematic study prepared for one or another of the several viewpoints that might be held in respect to the legislation. The most elementary precaution of straight thinking, namely the definition of basic words such as "poverty," was not taken and the issue of defining them fought off until the end for political reasons, and out of sheer ignorance of the benefits to be derived from logical clarity. A mess of vague statistics was dished out; references to the specific features of the proposed legislation were in lofty abstracted language as if poverty were such a holy subject that it should not be pried into. Large grants of undefined powers were to be assigned to the Director, but effects of such delegations upon the other agencies in education and welfare, upon voluntary welfare groups, upon the powers and functions of congress and upon federalism were not contemplated. Nor was serious attention given to the primary question: "What effects would all the money, personnel, activity, and power really have upon poverty in America?"
Let us take one instance of the failure of intelligence. A single national sample survey, requiring three months and one quarter of a million dollars, would have told Congress (and the whole country) for the first time who was poor, where the poor were located, what combination of problems made some of the poor handicapped, and how could the poor be approached so as to help them with the least bad side-effects upon other people, institutions, and ideals. Sargent Shriver declared before the House Committee on Education and Labor, "We wanted this program with the maximum amount of objectivity that we could bring to it; namely, we tried to find out very accurately who the poor people are, where they were, and what could be done by government in cooperation with the private sector that was workable, that could affect them and help them." If this were so and the voluminous material introduced at the hearings reflected it, as was certainly intended, then the conclusion must be that the standards of scientific inquiry on matters of legislative policy are as low in the executive branch as in the legislative.
The courts of the federal government have gross appetites for law-making that extend far beyond their ability to gather and prepare social intelligence. The President, who has been granted truly wonderful resources to obtain social and economic information, often fails, as in the present case, to avail himself of his chances. (Indeed, nearly every statement in this book concerning the presidency and Congress can be illustrated from the history of the Economic Opportunity Act of 1964.) Congress, in turn, has never in full self-awareness asked itself how it should go about incorporating into its operations the arsenal of techniques of intelligence recently developed by the behavioral and natural sciences. Were it to do so, legislative histories as damaging as that described here would become more rare. If a technically equipped Congress, as Professor Ernest Griffiths has suggested, [Congress: Its Contemporary Role (New York: New York University Press 1961)], would be able to handle problems if any degree of complexity, the total problem of Congress in the framework of American society might then be clarified, for it would become basically political: on what issues and with what ideology should Congress be made to work? And, how much power, given the "correct" issues and ideology, should Congress have in proportion to other powerful agencies of government?
However, the problem of adopting the best instruments of intelligence will not be solved simply by educating congressmen concerning their possibilities. Planned ignorance can be a tool of shrewd policy. Cutting off Congressmen's independent sources of knowledge or maintaining them at a low level of efficiency is an excellent method of making Congress dependent upon the executive branch. It is a sociological paradox, one of the many that block reconstruction of the republic, that the supports of the Republican Force are anti-intellectual, even while the survival of the republic depends upon maximizing control over the intelligence machinery of society.
Congress needs more than one official intelligence and research group. A congressman should be able to call upon any one of a large number of certified research agencies to prepare a study for him. The Legislative Reference Service must of necessity be superficial, non-philosophical, and narrow in its range of research instruments. A congressman should be able to call for whatever instrument he wishes from those who know how to employ them. The money presently available for ordering studies is inadequate. Within a decade or so it should be multiplied ten-fold. One hundred million dollars for congressional research would provide congressmen with the "Great Equalizer" to the bureaucracy, executive, and major interest groups. One-tenth of one per cent of expenditures for research is scarcely excessive. It is one dollar out of every thousand spent. With that sum, two parallel organizations might be set up in the Library of Congress from which a congressman might chose his research (never mind the shibboleth of "avoid duplicating a service"). The leadership could prepare policy programs. The individual congressman could go far to develop social and economic intelligence. The whole output of Congress would rise to a superior level.
The medieval parliaments might appear, and perhaps appeared, to an uninformed or prejudiced observer as champions and instruments of conservatism. Actually they were; however, opposition to the new meant not only the defense of special interests but also resistance to novel directions-especially the attempts of power to unbind itself-granted in the name of this or that promising ideal-from every brake and control of its subjects.
A. Marongiu, Il Parlamento in Italia (1962)
Corresponding to Congress' peculiar mode of achieving consensus by the system of successive majorities, is its special way of governing the executive branch. ("Governing" is too strong a word since the power of governance is in process of shifting around and the executive is coming in from another side, so to speak.) The unorthodoxy of Congress' method of dealing with the executive is more theoretical than real. That is, it is unorthodox when compared with textbooks on administration; it is not so unusual when compared with what actually occurs in the struggle to control large-scale organizations.
Of what does this unorthodoxy consist? Essentially it consists of a willingness of Congress as a body and as individuals to come to grips with problems of controlling the executive wherever it can grab hold. It consists on the other side, of releasing its grasp of anything that gets too "hot" or too "cold."
The principal systems of control over the executive are six: Briefly, they are:
Empowering: The granting (and shaping ) of powers
Designing: The design of organizational structures
Governing: The governance of personnel
Funding: The provision of funds
Auditing: Watching the record of spending
Investigating: Investigation and research, constituent nursing
None is unique to Congress. All are performed by cabinets, boards of directors, politburos, and boards of education. To specify them as they occur in the legislative process, we should need to emphasize certain variations only. For example, when Congress grants powers to the executive, it legislates, but these orders to the executive and to the larger population beyond differ from other decisions of other bodies mostly in being more formally stated and covering a great variety of subjects. The pomp and ritual of the event combine with the fact of ultimate possible sanctions by force to make the law of Congress appear of another kind than the "laws" of other groups. Give a private company a monopoly of a mysterious and dangerous product such as dynamite, and before long its board of directors would begin to act like a legislature.
"Excessive" delegation of powers is a second Variant trait of Congress as a rule-making group. Nothing that can be readily recalled is "excessively" delegated, but Congress' assignments of authority to the President and agencies tend to become permanent. When congressmen later speak of recalling or even altering such powers, the protest that meets them is like that which comes from persons whose private property held from time immemorial, is being taken without compensation. Owing to the constitutional independence of the presidency and the legal and traditional independence of administrative personnel, Congress has to fight to regain powers it may once have blithely delegated.
Are there any clear boundary lines between what is admissible and inadmissible as interventions in the executive branch by Congressmen, collectively or individually, by inquiry or by law? There are such to some exponents of the Executive Force: Congressmen have no right to intervene personally in any individual case before any agency; they have, moreover, no right to deal legislatively with any sub-agency or any internal agency affair-structurally, financially, on personnel or on substance. In short, Congress should act only as a whole, only by law, and only through the broadest policy statements possible, leaving to the President the absolute power to rule the government beginning three paces from the steps of the Capitol.
One could cite and quote many a document, speech, and action showing what a powerful grip this conception of the presidency has on "the best minds" of the country.
Thus a committee of twenty-five distinguished business executives, all with governmental experience, approved in 1965 a report called "Improving Executive Management in the Federal Government." Their conclusion: "The President of any large corporation with so little effective control over his key executives would be severely restricted in his ability to accomplish corporate objectives." [A Report issued by the Research and Policy Committee of the Committee for Economic Development (New York, 1965), p. 53.] The remedy: transfer almost total control over all top executives to an office inside the Executive Office of the President. It scarcely occurs to these gentlemen that a) The Federal Government is much vaster and different in spirit and purpose from a corporation, b) the words "his key executives" imply a spirit of property that is certainly not derived from the Constitution, nor from the laws of Congress, nor even from the utterances of several Presidents, but is a connection of the old-fashioned textbook school of military-civil administration, c) many corporations do not have the absolute freedom that is premised here for them, and d) so long as the President calls himself a legislator-as they all do now-he must be ready to struggle for the power to legislate with the original supreme legislator, Congress. If a cartographer and a gold-miner meet in a valley, they might get along splendidly until the cartographer says that he is also a gold-miner; the first miner would scarcely be blamed for taking an interest in cartography. The top executive establishment is both the object and the source of power. To surrender jurisdiction over it would greatly diminish the general power of Congress.
Is the other extreme as ridiculous? Can the advocate of the Republican Force reasonably say: "There are no limits to the right of congressmen to intervene in the executive branch, collectively or as individuals, in personal cases and by laws?" He cannot, for several important rules of intervention must be followed conscientiously if other aspects of the republican program are to be pursued consistently. Three of such rules can be offered there:
A congressman can justifiably intervene in support of a personal being seriously harmed by the executive branch, or as advocate of a person receiving abusive treatment at the hands of administrators.
A congressional committee can do the same and can also use its substantive and fiscal competence to cause agency officials to treat its views with as much respect as those of the President or agency head. The administrator has no right to "freedom from fear of Congress." The executive hierarchy retains, of course, the final say on the policy or action at issue.
Congress as a whole can structure and restructure all agencies down to the last unit, and can give and recapture all initiatives (powers) that it believes important to have. Congress, as Professor William W. Crosskey has elaborately demonstrated, was originally created in the model of the omnipotent eighteenth century legislature; there is no fundamental reason whey that concept has to give way to a hierarchical executive walled against intrusion. [Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953).]
It will be said that these rules are in fact followed (and those who say so will often add "regrettably" and "unfortunately"). They are to a degree. But let us consider two examples of the moment. They are transient, yet typical.
In June of 1965, the House, aroused at the Secretary of Defense's decision to close certain defense facilities, particularly the famous Brooklyn Navy Yard, attached to a $1.9 billion military construction bill a requirement that any termination of a facility might be rejected by a majority vote of either Chamber. The administration objected that its executive prerogatives were being encroached upon.
Is the closing of a military base an executive matter? Thousands of persons suffer economic deprivation. Is Congress to permit this "legislative enactment" by a cabinet official? Would not the maintenance of the facility be comparable to action designed to prevent an area from becoming economically depressed? But presidents have asked Congress to legislate for depressed areas, as with the famed "Appalachia" program. Why ask Congress to legislate on this but not on the closing of a military base? Is the prevention of an Appalachia an administrative problem, but the relief of an Appalachia a legislative one?
The mysterious White House spokesmen appeared and argued with the reporters the case of the Executive Force. They argued a second case in the same month in support of a presidential veto. Congress had provided $70 million for flood disaster relief for the Pacific Northwest; but it had required that certain authorized projects could only be initiated following upon the approval of the Public Works Committees of the House and Senate. "It has the potentiality," said a mysterious White House Spokesman to a New York Times reporter, "of making government programs the political playthings of committee chairmen." To which it might be retorted, "Whose playthings should they be?"
The answer seems clear enough. First, the contest to make policy is a struggle for power, and the legislature's power is generally to be preferred to the executive's power. More significantly, if its policies are legitimate, Congress is entitled to choose its means. It can legislate separately on the matters in question, it can legislate en bloc on the same matters and others together; and it can fashion flexibly the whole and the parts to create an "improved" type of legislation.
Generally the Executive Force, with its command of the sword and the pen, has been successful in the "moral" and "scientific" struggles against congressional controls. Not many congressmen are on the alert to new possibilities of probing and mastering the vast administrative apparatus that Congress itself has created and helped to expand.
Congress has similarly lost its moorings on the philosophy of personnel governance, an area in which in truth Congress has been victimized by the textbook writers. The fact that there are several millions of government workers and armed forces personnel has made it appear "obvious" to many people that one rule should govern all. Congress has been intimidated by the statistics and by the experts.
Actually, one can well conceive of as many personnel systems in the federal government as there are agencies or as many as there would be if the agencies performed non-governmental functions. The State Department in fact has a separate civil service, the Foreign Service. Florida and other states, and other nations, have independent personnel services in the same overall executive branch of government. Creating a great monolith of the civil service works only to solidify the bureaucratic and separatistic spirit, and to make the whole body more solidly resistant against congressional governance.
It is difficult, now, nearly a century from the foundation of the civil service and a generation from the major consolidating decisions to see what important economies, efficiencies, and recruitment advantages were obtained. The provisions of security, interchangeability, likenesses, uniformities, restricted from firing and freedom from politics have worked largely to make the civil service ungovernable, indeed almost as unmanageable, to the President as to the Congress. They operate like dredges to keep the currents of powers moving swiftly down from the elective institutions to the civil service, and to impede the process of bringing the same powers back up river.
If once the centralization and integration of all federal personnel were needed to educate them to certain practices, that time may have gone now and a series of independent structures may be more in keeping with a spirit of republicanism. At the least, the personnel of the General Accounting Office, which is a particular instrumentality of Congress, might be organized in an independent civil service, to accentuate their special congressional mission in regard to supervising expenditures of the executive agencies.
In providing funds for the agencies, Congress faces the dilemma of all who run non-profit organizations. Wants are infinite, the treasury limited, and the philosophy prevailing is that all desires are equal. It is an annual miracle that a democracy can survive its fiscal trauma. That is does so reveals how superficially the common democratic doctrine of "give everybody what he wants" penetrates the government. Other principles interfere. Some people want more than others; some people turn to government more for their wants. Various interest groups outside and inside government organize the political process. The picture is too complicated for most people to be sure of what is happening. And legislators have their own idea of who should get what. If it were not for all of these facts, the government would reduce to chaos.
Budgeting is therefore largely a political process, as Professor Aaron Wildavsky has lately described it, [The Politics of the Budgetary process (Boston: Little, Brown, 1964).] and so are taxation and financing, where the bulk of all that is done has been determined by past politics and where present politics can usually make only a small impression. Nevertheless the hope must always remain that enough forces of the same persuasion may be banded together to guide taxing and spending along certain philosophical lines.
Then it would seem that the strategies of the budgetary and revenue struggles should be dictated not by the textbooks on public finance so much as by the needs to control and turn a vast machinery toward certain social ends. Thus if the textbooks read that an across-the-board cut of the Budget, affecting all agencies, is the worst form of budget management, but the alternative is to run large deficits and increase taxes (there being no chance for various reasons to cut the budget selectively), there should be no moral shock over the technique employed. Whatever principle is used that is better than the next best, is best. The intervention of Congress, then, which of course must mean the action of some segment of the chain of successive majorities, can justifiably occur, if the end is justified, at almost every stage of financing and spending, and wherever in the executive hierarchy the intervention is necessary to attain the goal.
The same principles hold for the auditing and investigating functions. For a generation, pundits have argued that Congress should cease trying to control spending before it occurs, whether by its own actions or by those of its agents such as the Comptroller General. Congress almost as stubbornly retains the power to look into the spending process at every bend of the road. In a non-governmental organization where the formality of rule does not crystallize so rapidly into walls of dogma and law, the legislative and top executive power does not delve often into the accounting process, but it may readily do so and does so whenever it pleases. If once Congress were to agree to let the executive take over all save the ultimate post-audit of accounts it would have little more power over the conduct of government than an accounting firm such as Price Water-house has over the du Pont Company.
Similarly the investigating power is hugged closely and blindly, like a spoiled child. Those who have been led by the tantrums and scoundrelly tactics of various investigations to study them closely usually finish nevertheless by advocating the education of Congressmen, not the abolition of investigations. It is obvious that a legislature whose probes into any part of the government or society are restricted, is limited by that degree of restriction in its ability to know, rule, and control. The education recommended follows a simple logical line: standing and select committees are in the business of learning prior to legislating. Learning may be by general study or case study. The case study is the dramatic, news-provoking search into a troublesome or criminal condition. It has reason to exist despite its teetering frequently on the edge of sheer publicity or sheer persecution. Some part of human science is founded upon case studies in which individuals and groups concerned have suffered ridicule and unfavorable discrimination.
But Congress has far to go to straighten out its character in this regard. Legislators must train themselves not to think of legislating as a game of cops and robbers and of committee work as public relations or adversary proceedings. Good government asks for scientific research, not a show. The total committee process should be reviewed in this light. Every procedure should be scrutinized by congressmen and specially equipped researchers to determine the time, motions, attitudes, and effects of the process. In the end, ways of converting the details of the process into modern means of advancing knowledge and converting knowledge into intelligent power should be achieved. Still it is difficult to recommend specific devices that could guarantee improved attitudes and practices.
In an external context too, Congress should give greater attention to structural design. Each year brings the creation of new agencies and the proliferation of old. The determination of "who shall do what, when" is critical to everything that occurs afterwards in connection with an activity in the area covered by legislation. When Congress makes such determinations it is saying in effect, "This is the house you will live in for many years to come, and it is suited to certain ways of behaving."
Yet Congress performs this vital control operation often without full awareness. Legislators pluck conventional forms of organizations out of the military and paste them on the civilian. They use financial organizational structures for community action programs and so forth. Again a complete inventory of forms of agencies is called for, and a continuing study of how to adapt all structures to republican ideals and substantive aims should be carried on. Here too, the subject is too important to be delegated to the executive branch. Intervention in the design of agencies, far from being a technical matter to be left to experts, is the legislators' key to a republican bureaucracy.
If structural design is at one end of the continuum of regulation, intervention in administrative detail goes to the other end. "There are many members who have been here a long time who still devote 90% of their time to case work," asserts one congressman, according to Dr. Charles Clapp. [Op. Cit., pp. 54, 53, and 52.] It is remarkable indeed that anybody can spend time on legislative business considering the much greater rewards that go to fence-mending. "You can be a great fellow with the voters," says another Congressman, "and a mediocre legislator." And still another, "This life consists of preoccupation with the unimportant at the expense of the important." If "errand-boy" or "nursing" functions had no meaning besides themselves, one might find in them the ultimate destruction of legislative government. On the one hand, no one could be elected without being wholly devoted to them. On the other hand, no one could help legislate and govern wisely with them.
However, they are of larger meaning. We have already said that a million contacts with citizens on personal matters touch a sizable fraction of the country. Congressmen are busy and highly efficient social workers, earning twenty times their cost easily in the counsel and therapy they minister.
In the second place, the service function provides occupational therapy to the congressmen and their staffs, who otherwise would suffer gravely from the frustrations of trying to move business on the floor. There is only room for a select few at any given moment on the business of the chamber. The rest must occupy themselves usefully and, given the excitement of politics and its irregularity, learning in the process of human contact is much more possible and easy than through books and reports and solitary thought.
Perhaps the principal merit of the service function is to keep the congressman at grips with the giant administrative establishment. Unless they were to approach executives with a particular cause in mind, they would scarcely do so at all. Communications would languish and the only contact which civil servants might have with the political world and all the problems that well up through it would be occasional formal appearances and conferences.
If this analysis is true, there is ample reason to retain a strong service function in representative government. How much of a congressman's time should be properly allocated to services? What are dishonest services? How can the congressman's staff perform such services? How can the services be performed without disrupting relations within the agency and between the lower agency officers and its top officials? These are all questions whose answers are dictated by circumstances.
The number of personal services performed by Congress is a measure of the power of Congress. When Congress is strong, its members interrupt the bureaucratic process often. Its constituents interrupt the legislative process just as often. In times gone by, the number of requests and interruptions varied with economic conditions. As Congress set up an ever more separate and impermeable executive establishment, and provided for executive performance of some of the tasks it performed formerly itself, it could be expected to have less of such work.
On the contrary, it has had more. For the number of personal problems brought to members' attention is also related to the extent of bureaucratic intervention in society. When that is large, congressmen have more services to perform. Every increase in government's role in society-whether expressed in payrolls, activities or rules-adds new sources of complaints and inquiries. In this way, the flood of personal business reaching a congressman can be a danger signal that Congress is becoming weaker relative to the growing collectivization and bureaucratization of society.
In that case, to jettison some of the service tasks would only make the surrender of the citizenry to the bureaucracy more complete. They would have no third party to whom to bring their concerns unless a new agency or set of officers were created for the purpose. [The "ombudsman" proposal of congressman Reuss, would set up such an office. (See below, p. 240.).] That would probably be inadequate if only because an agency is bureaucracy and bureaucracy sets up rules and the rules eliminate "irrelevant," "illegal," "shady," "emergency," personally-involved, and other kinds of situations. So the congressman's office, or something like it, would appear to be most efficiently designed to take human beings and their problems for what they are and to resolve them.
To conclude the discussion of congressional self-government, several assertions are made once more: Congress has great powers but exercises few. An oligarchy runs Congress but is responsive within reason to the rank and file, demands little of it, and subsists independently of the President. The system of seniority that underlies the oligarchy is a complicated result of many motives and practices. The system of successive majorities gives solidity and representativeness to congressional action. It is in every sense an intelligible and defensible alternative to the means of deciding policy in the presidency and bureaucracy. The intelligence system is defective and Congress thereby is deprived of the fruits of knowledge-power and prestige.
The controls systems are unlike those preferred by the textbooks on administration except in essence, for they permit Congress to enter into the executive process wherever it pleases and relinquish to the executive and courts whatever it does not wish to decide. Thus congressional government is less definable and more flexible than many another large-scale organizational system. Yet it is inferior to them only if its objectives are made un-republican in character. Any judgment on devices used by Congress to intervene in the work of the executive branch thus can only be made on the basis of a philosophy of ends, not on the basis of an alleged "objective" applied science of administration, a thing that does not exist.
That many a congressman does not understand this viewpoint is not surprising. He sees himself today in the mirror of the executive suite. The "old type" of politician is beyond the pale; he is supposed to be ignorant of the science of administration. The contemporary member has been put through a cultural training and schooling that makes him ashamed of ways of doing things that are out of vogue. What he does not appreciate very often is that the way to "efficient" government is not through conventional administrative management theory but through the human relations techniques of mutual aid and consensual decisions exemplified in embryo by the original legislative way of life.