Concilium totam civitatem repraesentat.*
*(The Council represents the Whole Civic Body).
Bartolus de Saxoferrato (1314-1357)
TO THE ADVOCATE of republican government, with its principle of congressional supremacy, reforms of the system come less easily to mind than they do to the executive reformer. The typical congressional leader still believes, though anxiously, that the Constitution carries Congress at anchorage. But the Constitution has lost its moorings in the Courts, and the institutions of government are now determined largely by reason and power. Professor Charles Aikin states the situation this way: "The modern basis of a genuine separation lies in political facts, not in juristic theory." [Charles Aikin, The Regime of Assembly and Responsible Government (Berkeley, Calif.: Dept. of Political Science, U. of California), p. 358.]
Political scientists also have tended to be unconcerned with the reforms to strengthen Congress. The morale of the republicans is weaker. More has to be invented. The force of the century has been moving in the opposite direction; therefore the congressional force, far from being conservative, must be more disposed to change than the Executive Force.
Again, however, the reforms fall into natural categories insofar as they concern first the constituency and party, then the presidency, then Congress itself, and finally the executive establishment. It should be remembered too that some reforms have an ambiguous effect. For example, electronic roll-call voting and the question period, by slight twists of detail, can be converted from pro-Congress to pro-executive. Also, the tying of congressional elections to presidential ones will favor the strong executive, whereas varying the timetable so that the two do not coincide will favor the independent Congress. Finally certain recommendations presented as reforms for the executive can be reversed and become advantageous to Congress. An example would be the opening up of a greater, not lesser, travel privileges for congressmen.
The Venetian Senate is so courteous in modern times that in the distribution of offices, when there is one who asks for an office and many who refuse it, it finds it easier to satisfy both the former and the latter, without considering whether it might be better to send the man who refuses and hold back the one who requests it, so that the former may use the ability he has acquired and the other, who does not have it, may acquire it.
Esame Istorico Politico, Anon. Venetian, 1675
Congress lacks what is called these days a "good public image." This is partly because the corporate workings of Congress are unknown to persons even of educated status. The content of the laws reaches lawyers in correct form; it reaches the public through the press in a garbled form, if at all. A reporting service that would translate legislation into language understood by the average educated person would clarify and support the functions of Congress.
One member of the House has declared: "The media today are so poor in reporting what is going on, that a Member has a double responsibility to report to his constituents about legislation." [Clapp, op.cit., p. 88.] As a result, ninety per cent of the congressmen employ newsletters to their constituents. Newsletters usually play up the work of an individual congressman and they also support Congress as a whole. Not infrequently, however, a congressman will use his newsletter to denounce Congress and its procedures for opposing his good works. There is no continuous output of information in support of Congress.
It would be well, if possible, to establish Halls of Congress in a central city of each state, where a kind of dynamic museum of the history and present operations of Congress would enlighten the public. The same Halls would contain "exhibits" leading into the future, showing that Congress, while retaining its historic character, will be changing, like every other progressive institution. Certain kinds of projections can be made of congressional business; for example, it can be graphically displayed as it may be experienced ten years, a generation, or a century from now.
Broadcasting and telecasting of Congressional sessions has also been suggested. This proposal seems on the surface to be pro-republican, but might have anti-congressional results unless the Congress invested much energy and time into the work happening on the floor. Actually, unless some exceedingly clever means were devised for conducting work while under the eyes of the television cameras, the telecasting would prove to be a great waster of congressional time. Congressmen would come on the floor solely to be "mugged" by the cameras, when they would have more serious work to do elsewhere.
Certainly, however, more frequent expositions of congressional work via the mass media would be valuable. It can be said that at any given time, there will be something important occurring. If it is not on the floor, it may be in a committee meeting, a congressional caucus, or in some encounter of Congress and the outside world of the executive branch or the public. The proper use of television or related media could bring about a deeper public appreciation of the intricacies of the congressional processes.
A National Civic Service should benefit directly and indirectly the congressional system. By a National Civic Service is meant the requirement that all persons of a certain degree of education in America devote some part of their time to meritorious associational activity or political activity. This project would only extend the precedents and experiences incorporated in military service, Red Cross service, jury duty, charitable activity, educational work, and other manifestations of civic energy.
The present active constituency of Congress is too small and there is a danger that Congress may be fatally weakened by lack of support from the grass roots. Encouraging much variety in types of civic service would eliminate the danger of a single group monopolizing civic skills. Any kind of legitimate service would become an acceptable fulfillment of the duty. Setting a limit on who is compelled to enter the service by setting a minimum level of education or a test of achievement would assure that an increasing proportion of relatively well-informed and interested persons would be found in the active constituencies. In effect, the National Civic Service could provide Congress with a more broadly-based and a more competent public than presently engages it.
Congress needs more help. This point is clear in several regards and will be mentioned again. But here the emphasis is upon providing congressmen with personal followers. A larger nuclear constituency is needed. It is most unreasonable and anti-congressional to strip the support of congressmen away, leaving them to perform heavy tasks with help that is numerically and quantitatively inferior to that provided for a middle-level bureaucrat. The Congressional Internship program of the American Political Science Association, supported by foundation funds and providing young professional assistants, has in recent years been a boon to many congressmen. The auxiliary services provided congressmen could be improved too. Within limits, whatever adds to the personal efficiency and comfort of the congressman will aid republican government.
The power of Congress to control the apportionment of its seats within the states may have slipped out of its hands. The Courts have usurped it. Constitutional amendments may possibly reestablish congressional control. Actually such congressional control has meant in the past largely an abstinence from exercise of control. If Congress, following the Courts, determines that all districts must be so far as possible of equal population, contiguous, and compact, then little variety may be expected in future apportionment systems. Otherwise, it is conceivable that some states would experiment with modes of apportionment more in accord with future stages of society.
Particularly important in this regard would be some means of conceding to major interest in a state recognition that congressional districts may be based only partly upon population, and otherwise upon vocational or ideal concerns.
At present this would be discouraged by the Courts. Furthermore, the court rulings would appear to prevent experiment with systems of proportional representation, community representation, representation that follows socioeconomic and geographic boundaries in the state, and other types of groupings, besides those based strictly upon equal-population districts.
A republican position would call for strong opposition to the Courts or executive branch taking over any part of the legislative function, including apportionment. It would entail apportionment wherever possible according to rules that would favor strong local and state bases for the support of individual congressmen, and a moderate weighting of electoral systems in favor of republican ideological and social groupings of the population. In the metropolitan regions of the country, a plan that would typically elect about half of each metropolitan congressional delegation at-large would speed up the self-government of the region.
Many government agencies use non-governmental personnel in a representative capacity. There are probably hundreds of instances of private persons participating in governmental decisions in an official capacity, alongside or within agencies of the government. This is as true of the Department of Defense as it is of the Department of Labor. Since the effect of these panels that give functional representation is to incorporate into government policies the idea of groups affected by the policies, the selection of such persons should not be left entirely to officials of the permanent services. They should satisfy a formal, cultural test, laid down by the Congress. It would require an understanding of the nature of federal government, of the doctrines of congressional control over administration, and of other principles so often overlooked in day-to-day activity. The roster of the qualified could be drawn upon in filling hundreds of positions in a way that would be conducive to republican government.
Democratic Government is sure to degenerate if we drift into a position in which the only, or the most effective means by which the servants of the State can get their special ideas, or their special prospects, attended to is by canvassing indifferent electors; or if the privileges of large property-organizations are permitted to exist, but are exposed in every session of the legislature to ignorant or interested attacks, and are allowed to defend themselves by huge subscriptions to party funds.
Graham Wallas, The Great Society (1914)
The political party system, except as it responds to the mass media and is taken over from time to time by gusts of popular emotion, has been tamed over the years. When it first appeared, the political party served as the chief instrument for the democratization of the federal government. Fortunately at the same time, if reflected a sentiment against the federal government and therefore could not succeed in achieving its ultimate natural goal that of elevating the President to great heights of power and influence. The present party is weaker than its ancestor but the opportunities afforded it, if ever it were to control the government, are much greater than they originally were. Hence the true republican seeks no increase in the centralization or integration of the party.
For the Republican Force, the party appears to have two functions. They are highly important functions, even indispensable. They are not of the type that rationalists or party reformists would regard as advantageous. The history of political parties largely ignores them. They are not even admissible in polite political discourse. Still, through them the party operates from beginning to end, and in the Congress especially, usefully to organize non-justifiable, non-rationalized behavior.
The party does this, first, by providing, in frequently occurring situations, when how one should vote in the House or Senate is as matter of indifference to the member, a basis for making a decision. By dividing along party lines, a reform of rationality is lent to the voting process and the requirement in democratic procedure for a loyal opposition is met. Thus, the party forms committees for the House and Senate; it sets up the choice of leadership; it organizes necessary propaganda; it urges and opposes, often taking both sides of an issue within a relatively short time.
In addition, the party rationalizes ignorant behavior. It does so at every level, from the constituent to the President and the leadership of Congress. The people are diverted by the party into accepting the disappearance of direct democracy, with its attractive but impossible promises, while keeping the myth. In place of an admission of wholesale ignorance, which would damage the myth of popular omniscience, voters can plead allegiance to party label. Indirect evidence of this is provided by a few studies. Thus, in the vital area of foreign policy, a study of voter attitude formation found strong tendencies in the population to "follow the party with which one is identified rather than. . . use the party as a means of expressing attitudes independently arrived at." [George Belknop and Angus Campbell, "Political Party Identification and Attitudes Toward Foreign Policy" Public Opinion Quarterly, XV, (Winter, 1951-52), p. 618.]
When there is a doubt as to what to do, a representative can cast a blind vote or a recommended vote and say that it was a party vote, justifying his action as being that of a loyal party supporter and as being a vote of principle against local, personal, national, or international interests of all kinds. This happens "frequently," reports Charles Clapp, [Clapp, op. Cit., p. 148.] on the basis of prolonged discussion among congressmen. When the representative does not know what an issue is about, his party vote becomes a safe vote. It requires little defense other than that afforded by party label.
It is amusing that so much intellectual effort has gone into discovering the rational meaning of party voting or lack of party voting in the Senate and House of Representatives, when what would apparently be required to solve the problem would be an ability to face the somewhat outrageous non-rationality of the political system. The political party incorporates ignorance into the government as a working force. The political party in the United States is a catch-all, carry-all, and a cover-all. This situation, to a republican, is good.
It will be . . . far more congenial with the feelings that actuate me, to substitute, in place of a recommendation of particular measures, the tribute that is due to the talents, the rectitude, and the patriotism which adorn the characters selected to device and adopt them.
Washington, "First Inaugural Address to the Congress" (1789)
Precise reforms of the presidency are more desirable from a republican point of view. Probably the most important of all is to reduce the terms permitted to any single man as President from two to one, and to lengthen his single term to that of a United States Senator, namely six years. Four years is insufficient to permit the President to develop a program and make lasting contributions to the reform of the civil service. The four-year term is short enough to entice opponents of the President to delay his every wish and to tie up government while waiting for a change of office. Six years (five is not impossible) is adequate for these tasks of the President and would let him develop a wealth of experience.
At the same time he would stop running for re-election. Presently much of the first term of the President is devoted to assuring re-election. Only rarely does the President during the first term of office and for principles that can be construed as hurting his chances of re-election. There has been no systematic study of the first term-second term difference, but it is widely believed to exist by friends as well as foes of the presidency. It may therefore be given some credence.
The advantage of the incumbent President in seeking re-election is formidable. The late Professor V. O. Key and many another political scientist have said upon occasion, though rarely do they put words into print, that the incumbent is as good as re-elected, bearing some extreme personal or national ignominy. Estimates of his electoral advantage in pecuniary terms can reasonably reach the sum of $60,000,000, quite outside of the sums expended officially for the incumbent's re-election. Included in such an estimate would be the political services of government officials, the news media coverage of the incumbent, the patronage that can be tied to work and contributions in the election campaign, planes, ships, cars, staff services, and numerous other perquisites directly promoting re-election.
This advantage weakens the position of the defenders of two and more terms who assert that the President behaves better in his first term if he knows he can win another. It also suggests that another reform may be in order. In a welfare state, the months before election can be used to release a number of benefits to the population. Increases in pensions, tax rebates, concessions, relaxation of administrative rules and other actions, shrewdly timed, many influence large numbers of voters. Admittedly, the wheels of government cannot be braked before every election; still, in the interest of fair and equal elections, a law halting the conveyance of direct material benefits to any group of the population by presidential or executive agency order in the six months prior to a presidential election may deserve consideration.
The presidency holds a number of powers granted it in past emergencies. These powers can be returned past to the Congress through an omnibus bill thus, restoring the normal distribution of powers between the Congress and the presidency.
The President's State of the Union message and other special messages have come to be regarded as official and authoritative statements of the policy of the United States. This is wholly erroneous. It is constitutionally a report that could presumably be given over to past affairs. But as the ambitions of the President have expanded, so have the contents and scope of the presidential messages.
Inasmuch as there is little likelihood that the President will become more modest in his messages, Congress may wish to develop a collegial response. Whenever the President delivers a message to Congress, the Congress would be entitled to deliver a message to the President. Something like this practice was initiated by the very first Congress. This need not be a perfect representation of consensus in Congress, but for that matter, the President's State of the Union and other messages do not represent unanimity in the executive branch. The public might compare each set of messages and decide which had a more attractive sound.
The ideal President, in the eyes of the Republican Force, would not at all be a weak-minded person, or merely a figurehead, nor a person at the beck and call of Congress. What could be essential in his character and office, and it must be said that American Presidents on the whole have had generous doses of such qualities, would be a serious understanding of the congressional system, a free and un-dogmatic approach to problems of administrative management, and a patient willingness to carry on an endless discourse with Congress, while maintaining an appropriate social and political distance. He must be a pluralist at heart and in mind.
Shout it! Shout it! Cry out! Run and cry! . . . Only-it Won't do any good-now.
Maxwell Anderson : Gods of the Lightning (1928)
It is tempting to offer a set of reforms of the Courts on the ground that all of the work of the Courts is pertinent to the position of Congress. But the same could be said of the whole of American society. It is particularly important to raise up as possible reforms, according to the republican viewpoint, first, some kind of legislative approval to decisions of the Supreme Court when the Courts has apparently damaged the position of Congress in the governmental and social structure.
A Constitutional Amendment has been introduced in the state legislatures providing that in matters affecting the federal union a Supreme Court of the Union be specially constituted to include elements from all of the state courts, as well as from the Supreme Court. There is no question that such a proposal would result in the strengthening of the republican element in American society and government, without damaging the essential position of the Supreme Court in all other matters. This would be preferable to attempting to give Congress that power of declaring the meaning of the Constitution which has, in the course of history, been assumed by the Courts. It would be less dangerous to political stability and private rights than the later power and it would not interfere in those areas of traditional review where the Supreme Court has admittedly done well.
Secondly, the size of the Supreme Court might well be increased to permit its dealing with cases in panel form, to speed up the dreadfully slow wheels of justice in America, without loss of careful consideration of the merits of cases. The same reform would, by promoting an internal division of labor, diminish the unprofessional and political character of judicial behavior. More and more, Supreme Court justices appear to be chasing after exotic cases, letting the essential body of judicial work be handled by lower courts and law clerks.
Moreover, it would seem advisable to provide the Court, and indeed all federal courts, with better research facilities on social affairs. Insofar as there must be ascertainment of sociological and economic fact, going in many instances beyond the ability of law clerks and opposing attorneys to provide, the courts should have personnel, funds, and techniques-perhaps research institutes-to make such studies. As Professor John P. Roche and the late Professor Edmond Cahn showed, the touted assertion that the Supreme Court has only recently come around to using sociological and psychological approaches in its work is not only not true-for it has always been so-but the court has not shown any signs of doing a better job with the tools of social science than it did in the past. [John P. Roche, "Political Science and Science Fiction," American Political Science Review(December 1958), pp. 1026-1029.] It is at least possible that the Supreme Court, properly equipped to get scientific assessments (including appraisals of what science cannot say) on matters of fact, will regain some measure of judicial objectivity.
This in turn would further the realization of the great ideal of objectivity of the law, which is the condition that would exist when all informed and reasonable persons agree that the application of a law to a case does not deviate from previous applications to similar cases except by the rules of empirical and deductive logic. There exists a continuous abuse of republican government in America so long as the Supreme Court engages unrestrainedly in legislation. The careful plans of a generation of statesmen, backed by substantial and leading segments of the public, can be destroyed after a single day of argument by a one-man majority of the Court.
At first it was, 'Your humble poor Commons beg and pray, for God's sake, as an act of charity.' By the time of Richard II, the 'humbles pauvres communes' had become, in the royal eyes, 'the right wise, right honourable, worthy and discreet Commons.'
R. Luce, Legislative Principles
The reform of Congress can be divided into changes intended to bolster its authority and morale, changes meant to increase its efficient intelligence, changes of its ways of making decisions, and changes in its powers.
The authority and morale of Congress have suffered losses in recent years. This has been elaborately demonstrated in these pages and elsewhere. The remedies are several. Congress should prepare a Charter of Legislative Authority. In this charter, it would declare the principle of legislative supremacy of the Congress, the position of the Congress with relation to the executive branch, the aims of congressional legislation, and the farther limits of congressional authority, which are less and less known to officials and public. It should, as mentioned, produce more collective messages, resolutions declaring the congressional view of life, so to speak.
An omnibus bill repealing all emergency laws, already mentioned in its precise reference to reducing presidential powers, is needed. Emergency laws have tended to become permanent. Their repeal would enhance the prestige and reestablish the authority of Congress in areas presently lost to it.
Congressional academies might be formed in a number of states or groups of states and attached to universities. These academies, which might serve the state legislatures as well, would prepare students for the legislative way of life. They would not teach executive management of the conventional type, which stresses one man's power and capacity to discipline others. They would emphasize the skills of understanding people and bringing them together. It would even be desirable to give such academies the right to assemble courses of study and do research in conciliar bodies of all types-in business, in voluntary associations, in churches and in historical and primitive societies.
There clearly emerges from various studies of congressional operations a picture of low morale among freshmen and even second-term congressmen. There is always a pathos to the freshman, but the lot of the congressional freshman is excessively hard. He is given very little influence, he has little explained to him, he is an outside individual groping for ways of entering a mysterious, over-occupied, rather indifferent collectivity.
To increase the efficiency of Congress for republican work and to slow down rebellious movements among freshmen, which tend to result in presidential supremacy, the congressional leadership could well take a greater hand in orienting, organizing, and apprenticing newcomers. The leadership should seek to employ the talents of every freshman as an individual in the admittedly overwhelming mass of work devolving upon Congress as a whole. The Halls of Congress (see above, page ) could be directed by first-term Representatives and Newly elected Senators.
In the sphere of intelligence operations, much reform is needed. Committee staffs of Congress, though they are the peak intelligence center of the legislature, are already far behind times in their work systems. Several changes are necessary. We have already referred to the need of increased personal staffs for congressmen. These would be separated from committee staffs, which should be increased moderately all along the line.
The committee or subcommittee, acting in its corporate capacity, should plan the work of the staff. At the beginning of each session and at intervals thereafter, the chairman, ranking minority member, and any or all other members of the committee should submit for discussion proposals for study and work, accompanied by a work budget and a research budget, both of which should be adopted or rejected by the committee.
A battery of qualifying tests should be imposed upon congressional staff members, but it is important that the congressional staff members remain responsible personally and loyal to their appointing committee and/or committee chairman. There seems to be little to be done and less reason to be doing it, in respect to the controversy as to whether chairmen or the whole committee should choose staff members. The provision for a kind of "bar examination" for congressional staff members is intended solely to require a basic level of high performance and philosophic principle in the office of Congress.
The committee should be able to call upon the Legislative Reference Service for the assignment of experts from various fields to the work of the committee. The experts should come from a roster composed of members of the LRS staff, persons outside of the federal government, and federal experts.
Factual inquiries and "crash" reports should be referred to the Legislative Reference Service. These are conventional on the whole and lend themselves to the broader capabilities of the Legislative Reference Service-at least as the LRS should be organized.
A Social and Behavioral Science Institute should be founded in the Library of Congress. Studies of controversial problems are denied support at present by the National Science Foundation. That is as it should be. The agencies undertake controversial research in abundance, but usually, if there is a presidential policy on the matter, the results are a foregone conclusion. Congress is naturally suspicious of work conducted in the executive or in the National Science Foundation, even though the work is allegedly "non-political."
Actually Congress would probably be more lenient and liberal in its aid to the development of the social sciences if those fields, in their controversial aspects, were supported by research even in part controlled directly under Congress. The place for this would seem to be naturally the Library of Congress, but the Institute would be separate from the Legislative Reference Service and would probably do most of its work by means of grants, where the research is of a basic and pure nature, unconnected with legislation, and by contract with outside agencies in the numerous instances where the job is being done in connection with impending or past legislation.
The central staff of Congress needs strengthening. An office for public relations has already been suggested. The congressmen themselves need information and popularization about what is going on in Congress. A daily, trustworthy popularization of the contents of pending laws and issues before the Congress would improve the intelligence of voting among the members. Professors Stephen K. Bailey and Howard D. Samuels were among the first to make this suggestion. [Congress at work (New York: Holt, Rinehart Winston, 1952).]
An Inventory of Freedom and Restrictions should be built up and permanently maintained by congressional appropriation. The inventory should be in the hands of congressional officers and should keep a national set of accounts of the numbers of ways in which, as time goes on, the liberties of individual Americans are promoted or infringed upon by non-governmental and governmental agencies alike. The stated policy of Congress should be to increase over a period of time the liberal capacity of American society and to reduce the restrictive capacity of society.
Such a policy is just as much and indeed more needed than the vaunted goal of assuring that the Gross National Product maintains a respectable rate of increase. Socrates once scorned the Athenians, who applauded the aggrandizement of the state, saying "They do not see that this enlargement is nothing but a swelling, a tumor filled with corruption. This is all that has been achieved by these former politicians by filling the city with ports, arsenals, walls, tributes, and the like follies, and by not adding temperance and justice."
Indeed it would be best if Congress not only required the Inventory to be kept by the bureaucracy but kept a similar set of books on its own conduct, so that the inevitable measure of restraint entailed by every law would be balanced against the freedoms tendered by it. And all laws would finally be tallied together at the end of a year, a session, and a decade, telling the people the fatal news whether all that was done in their name gave them less or more of liberty. The same set of books would have facilitated, as a by-product, the appropriate compensation, wherever possible, of those who by the legislation were damaged, and, in the fine language of the Common Law, needed to be "made whole."
Attached to the Social and Behavioral Science Institute of the Library of Congress, and relevant also to the Inventory of Freedom and Restrictions, would be a Sanctions Institute. Its purpose would be to perform research and make recommendations to the Congress concerning all the modes of social control that are used to implement congressional policy. The techniques of obtaining conformity to law and public policy are practically unknown in their range and effects. Imprisonment, fines, adverse publicity, cease-and-desist orders and a hundred other means are used to see that public policies are universally observed. Yet no reliable body of science exists concerning them.
Although already indicated, it should be emphasized that the Legislative Reference Service is too small and too conventionally operated for the intelligence requirements of the modern Congress. To strengthen the competency and control of Congress requires a creative and well-equipped establishment, larger than the present one, authorized to undertake a variety of investigations in the country-at-large, upon the request of individual congressmen. If a representative wishes any kind of field study to be made, he should be privileged to have it. To avoid handicapping unduly any potential opponents, the findings should be available as a matter of public record.
Staff assistance for the minority party should be increased in order to provide opportunities for intelligent and effective opposition to majority policies. Disregard of the need of minority party members for research and intelligence merely promotes discord, increases the crises of party turnover, and diminishes by far the value of the legislative product. Granted that it is not the party issue that requires protecting so much as it is some principle whereby intelligent opposition and control may be aroused, there appears to be no reason to deny minority members on any committee a third of the staff personnel and facilities used by the committee. In view of the sums presently made available, enlarging the staff budget will have to follow to insure against starving the necessary majority service.
Reduction of the special interest representation now to be found in certain committees is in order. The agricultural committee, to isolate an example, is too heavily weighted in favor of the interests being helped or regulated. On the one hand this strengthens the power of individual congressmen and therefore the power of Congress as a whole; on the other hand, the interests of Congress as a whole do not find their way far enough into the vital committee stage of legislation. A more formal representation of the unspecialized collective interest on all committees where precise interests are served-and this may indeed mean all committees-is recommended.
As to the committees and their names, very little advice can be offered. A committee on federal relations, metro political problems, and regionalism, would seem to have meaning for now and the future. So also would a committee on social and racial relations. Yet, no matter how these problems are divided, they will in turn invite new divisions to remedy the new defects they will cause. There seems to be no interest of a major kind which is not a major concern of an important congressional committee.
Proposals for the rule of germaneness in debate must be treated with less urgency than is often demanded. The House has such a rule. The Senate struggles to achieve one. Actually, germaneness tends to reside in the gavel of the presiding officer. If he has power, he can define germaneness, in keeping with his interest. If he has no power, but power resides in the individual members, they will employ irrelevant debate whenever it suits their purpose.
Of course, most of what is regarded as not germane in debate, say in the Senate, turns out upon analysis to be a crowding of the communication lines, very much as telephone messages are deliberately garbled in transit across the country, and disentangled upon reaching their destination. Two or more tasks are being moved along at the same time.
Moreover, irrelevancies and verbosity are utilized to delay proceedings and the question is not one of germaneness, therefore, but one of whether individuals should be allowed to delay a legislative process with which they are momentarily in disagreement. It is a question of values, and not of efficiency.
There is finally what might be called a logical rule of germaneness. When a man wishes to be brief and to the point, but cannot, either from psychological causes or for reason of misunderstanding, he may unwittingly, or at least without malice or plan, disturbs the routines of the chamber. This, the true logical form of non-germaneness, is difficult to analyze and control. There is reason to think that its control would help the republican force, because floor time would be saved for other purposes, and proceedings might be more impressive.
Other matters are also of uncertain character. The proposal that no committee should meet while its parent body is in session is met with in various forms. It appears to present an almost impossible contradiction because the desire to succeed in floor business and the wish to succeed in committee business must express themselves within a time span too limited for both.
Electrical voting equipment is not so important as some of its proponents would have us believe. It may appear that Congress wastes time in elaborate roll calls, but much necessary work goes on in the course of a roll call, and many little adjustments have been conditioned by knowledge that a roll call will be occurring as it now does; such arrangements would require new forms if electrical equipment were set up.
The policies of Congress are often left to the President and to several vigorous leaders, or even to chance, as an issue of one kind or another plays across the nation. If Congress were to deliver messages to the nation, assemble its leaders from time to time, and resolve upon other reforms advocated here, it might well finish by setting up central planning machinery. Such machinery exists now, but lacks one important element, and that is the forthright enunciation of the policies it is actually grinding out.
There is planning of policy taking place in the substantive committees and in the committees on rules, appropriations, and other groups. A method of extracting from such committees a sort of statement of policy and program would lend forthrightness and disinterestedness to the image of Congress. The results need not be more precise than those of the President or other groups in the nation. They might resemble, for instance, the program statement enunciated and advocated by Senator Taft in the 80th Congress. The nation would be told that there is a meaning in the work intended and performed by Congress.
A class of experts is inevitably so removed from common interests as to become a class with private interests and private knowledge, which in social matters is not knowledge at all.
John Dewey, The Public and Its Problems
A set of changes is required in the relations of the executive establishment to Congress. In the first place, much stronger action on the part of Congress is needed to insure it access to the operations and materials of the executive agencies. As a corollary, strong laws against secrecy, where that secrecy cannot be clearly demonstrated to be vital to national security, are in order. The number of areas that are off-bounds to Congress and the public and press should be reduced considerably.
Question periods have been advocated for many years. Stemming from the British practice of permitting the Ministers of the government to be present on the floor to answer inquiries publicly posed by members of the House of Commons, the American proposals vary the circumstances to what they believe would be American habit and the threshold of congressional acceptability. It is only fair to say that as the recommendations have come nearer to passage into legislation in America, they have become weaker and weaker in substance. The American executive, and congressmen as well, are disinclined to subject themselves to the rigors of thorough public examination.
On the anti-republican side, it should be indicated that congressional leaders have not been inclined to favor such proposals, whereas more of the uninfluencial or younger congressmen have been favorably inclined, for obvious reasons. Stephen Horn has indicated so much in his study of the Cabinet and Congress. [New York: Columbia University Press, 1960] Moreover, the old-timers of Congress smell a rat. The asking of leading questions can be practiced not only by opponents of the executives, but by the presidential party as well. The struggle to get the floor would also, in both houses, present difficulties to the presiding officers.
On their side, the executives of the government, while welcoming the chance occasionally to present their programs in debate, are appalled by the time that would be taken, and frequently water down the proposed legislation by suggesting that they be entitled to send junior staff members in their place. They furthermore visualize hostile interrogation.
Actually, the net effects of the question period are difficult to assess and a proposal for one kind of question period would result in a reform that must be considered part of the program of executive control, while that for another type of question period would nestle well in the package to be enacted for republican control.
Congressional Tribunes should be designated from a panel of qualified persons serving under the Congress. The Tribunes would be responsible for recommending that the government be disengaged from activities that might better be performed by non-governmental agencies, or other governments, or not at all. They would be assigned as individuals to all bureaus and offices of the government. Their tasks would be to report to the Congress each year on reasons for closing down or diminishing the functions of their agencies and practical means of doing so.
Each year, when hearings are held and authorizations and appropriations are voted, the reports and testimony of the Tribunes should be heard. Such a built-in antibody is probably the only method that can guarantee the control and reduction of bureaucracy.
Congress requires a more sympathetic officialdom; short of placing officials under the rule of Congress in their daily operations, a method of inculcating of congressional perspectives is difficult. A Sub-Legislative Corps might be created. This group of officers would consist of all persons who are given considerable delegated legislative power. They would be appointed by Congress itself and would be directly responsible to Congress in some way, especially with regard to the quality of their legislative promulgations. There is no paramount reason why the political imbalance which has allowed the executive branch to become the legislative branch should not sooner or later be corrected.
The very existence of the Sub-Legislative Corps would recognize that there are politics and public policies made in the course of the administrative process; that there is a new type of official; and that this official requires a new type of connection with the Congress. It should not be necessarily the "crony" type of connection, or the illegal informant. But neither should the fact of delegation of power be permitted to cut away more and more of the influence of Congress under guise of its being merely "administrative" in character. By being qualified according to regulations of Congress and by being required regularly to answer to Congress in certain basic ways, the higher executive officers of the government would contribute to the maintenance of the balance of power between the legislative and executive branches.
It is quite possible to adopt a policy of requiring the cancelling of an old activity in order to begin a new activity in government. Plus/one/minus/one equals a zero increase in activity. This should be called the Zero Sum Activity policy of government. The responsibility for devising a precise means of carrying out this policy should be assigned jointly to the congressional leadership, to the Legislative Reference Service, to the Social and Behavioral Science Institute, to the Tribunes of Congress and to the Sub-Legislative Corps.
Congress must watch its tendencies to authorize more and more scientific experts in the executive branch of government. Scientists, whether in the natural or behavioral sciences, tend to serve the interests of the executive branch, advocating the causes of the presidency or other executives, and doing so with great force because they speak from the pulpit of science.
As science grows in reputation and mystery, this obstacle will become ever more difficult for Congress to surmount. It is not necessary to convert congressmen into scientists or elect scientists to Congress; it is necessary to adopt some of the preceding measures proposed for enlightening the Congress, for enlightening the public and assembling the intelligence apparatus for scientific policy-making. Scientific inquiry should be aided, but such help is best provided while moving science out of the realm of government, even at the risk of some waste and some loss of control.
A common proposal nowadays is to establish an agent of Congress, a so-called "ombudsman," modelled along the lines of a Danish and Swedish official of recent origin. The ombudsman responds to a private citizen's complaints against an official by an investigation and a court procedure, if called for. Rather than this ombudsman, who might undermine the activity of the legislators, there is a reform of the Courts, may be a better solution. The procedures for redress of grievances against government agencies by persons or groups should be greatly simplified and speeded up.
There appears to be little reason for denying congressmen adequate facilities for handling similar types of cases by personal intervention. They might refer legal cases to the Courts, and would themselves be the ombudsman. If investigation is required, and the Department of Justice appears inadequate to the task, whether because the matter concerned is not a crime or because the Department involved is biased in favor of the executive branch, then such a task may be assigned to a Central Office of Congress, something like that of the General Accounting Office, composed of a number of Agents. The congressional Agent could then bring the case before the Courts, or, if not sanctionable by legal means, carry it back into the political process, for sanction by publicity, by political pressure, or other means at the command of Congress.
The awareness of precedent and possession has a politically compelling effect. There should be continual exercises in law making on the many principles of congressional authority. If executive secrecy is a threat, then a bill, not necessarily one of substantive importance, should be introduced and passed to establish and confirm the congressional principle regarding secrecy. If the structure of a minor agency is said by the executive advocates to be solely a matter for executive determination, Congress should pass a bill, again without substantive importance, creating a minor office, stating its powers, and providing for its review. If the power to screen appointments is being denied and limited to Congress, as it frequently is, then a bill should be passed providing that certain minor officials are to be appointed by Congress for essentially "administrative" tasks. It is equally necessary to legislate for the control of interest representative groups, administrative lobbyists, public relations groups and other external links with the agencies, so that the total representative role of Congress is seen as the job of governing a great many persons who have come to make a way of life from getting by way of agency rules what they cannot get by legislation.
All in all, congressional rule in the government may be best established by a determination of the nature of all forms, devices, and tactics that produce such rule, and a biennial enactment in an Exemplary Legislation bill of measures incorporating each and every one of them-the congressional veto of agency rules handed down under a law, the spelling out of structural details, the requirement of approval by a committee, the requirement of advance information on a rule, the reporting of all new boards and appointments (paid or unpaid) that have representative and public relations functions, and so on.
Thus each session of Congress will reaffirm and strengthen the theory of rule by representative government as opposed to rule by the executive. In consequence of these measures, special stages would be required to handle judicial litigation, since the theory of congressional authority is unlikely to be second nature to attorneys for the executive branch. For this kind of work, it would be best to have a General Counsel of Congress, working under a joint committee of Congress to expound congressional intent and prerogatives at the bar.
In the end, an increase in the long-range policy function of Congress is required, with a corresponding diminution of that function by the agencies. Three-quarters of the congressmen, reported a Dartmouth College study group in 1964, believe in legislative activism, or congressional supremacy. [See Michael K. O' Leary (ed.), Congressional Reorganization: Problems and Prospects (Hanover, N. H. : Dartmouth Public Affairs center, 1964).] Since Congress has to be elected, and the Civil Service is long-enduring, this may seem to be an impossible task, but if several of the preceding recommendations are followed, especially that of expanding the research facilities and central planning of Congress, the objective may be attained. Furthermore, all those steps which would be taken to increase the congressional perspectives of officers in the executive branch of government would indirectly result in introducing more congressional perspective into the planning of future legislation.
In the final analysis, the need for a society fit for Congress to serve and work in is evident. Yet this society depends upon the positive character of congressional legislation. The substance of the laws-economic, social, welfare, military-brings about changes in society and then again in the role of Congress. There is an ascending cycle of causation: from republican substantive principles comes a republican society, and from a republican society a republican Congress. A republican Congress produces republican government, and the republican government produces republican substantive principles. The process, it may be hoped, can endure for a long time.