Are Members of the House of Representatives Legislating in the Dark? (with James M. Curry)
Are Members of the House of Representatives Legislating in the Dark? (with James M. Curry)  
Podcast: Understanding Congress
Published On: Mon Oct 03 2022
Description: The topic of this episode is, “Are members of the House of Representatives legislating in the dark?”My guest is James Curry. He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book Legislating in the Dark: Information and Power in the House of Representatives (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress?Kevin Kosar:Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.I'm your host, Kevin Kosar. And I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.Welcome to the podcast.James Curry:Thanks for having me.Kevin Kosar:Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so?James Curry:So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons.First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process.Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills.So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to support that legislation. On a grand scale, this means that lawmakers with more knowledge and information are going to have more power. And, as it turns out, these are often the same people who hold other institutional power positions like party leaders and committee chairs. These folks are typically not only well versed in a subset of policy issues, but they also have large staffs at their disposals to provide them with additional expertise. This enables their involvement in policy-making at high levels and gives them greater sway over their colleagues’ votes in trying to get them to support or oppose whatever is being considered on the floor that day.Kevin Kosar:That makes perfect sense, and it comports with something I was looking at not too long ago—House rules—and it was impressive to me just how complex the rules of the chamber are. And upon seeing them, it brought to mind the old quip from John Dingell, who was in Congress for a very long time—a powerful member from Michigan—who said that "If you write the bill, but let me write the rules, I'll screw you every time." By virtue of knowledge of procedure, he could get things done and get them done to his liking that other people could not.Now, 50 years ago, Congress beefed up its core of legislative branch support agencies. This was a direct response to the “imperial presidency,” where presidents had tons of agencies to draw upon, tons of experts to draw upon, and the presidency was being viewed by Congress as having gotten too big for its britches—it was pushing the First Branch around. So Congress did a whole lot of stuff 50 years ago, including creating the Congressional Budget Office (CBO) and turning the Legislative Reference Service into the Congressional Research Service (CRS)—a full-blown think tank—amongst other actions. Yet here we are 50 years later and—by your assessment—these entities have not been enough. Why is that?James Curry:I guess the important questions are for whom are they not enough and for what are they not enough, because these are really important entities for Congress. They provide the institution as a whole with a ton of expertise, with a lot of resources at its disposal that it can and does use to learn about policies, dig into details, develop ideas, and figure out where they're going to go in the long term. I think they also helped Congress push back against an executive branch that is just rife with knowledge, expertise, and resources.However, what CRS and the CBO cannot do is help lawmakers in the moment when they have to decide on whether or not to support a bill. CRS and the CBO are not built to provide each member with rapid responses to specific questions about a bill that's on the floor in that moment. Often, CRS cannot finish studying a proposal and its implications before it passes. Ideally, CBO provides a fiscal score to a bill before it's considered, but that doesn't always happen either, depending on the speed at which the lawmaking process is going. So, these resources are important, but they can't help bridge the gap between what the rank and file know about what's going on and what party leaders know about what's going on. It doesn't change that gap that exists between the lawmakers who are in the know, who have plenty of resources and expertise at their disposal—including CBO and CRS when it's developing legislation—and what the rest of the membership knows when it's now asked to decide whether or not to support or oppose this thing.Kevin Kosar:It sounds like part of what's happened is that there has been a loss of what we call regular order by which a bill gets introduced and goes to committee and maybe subcommittee, then follows a deliberate process, and then eventually gets put on the calendar. Frequently what we see today is something that looks a lot different—what Barbara Sinclair called Unorthodox Lawmaking. And one feature that you flag in your book is the omnibus bill as contributing to this information and power asymmetry situation.James Curry:Yeah, we’ve recently seen more and more laws being passed in these large, thousands of pages-long omnibus bills that start out as something that's focused on maybe one specific major policy debate, but get expanded to include—and have attached to it—all sorts of other things that Congress has been working on. The challenge for a typical member of Congress is getting this massive bill—usually not long before it's going to be voted on in its final form—and having to figure out what to do. Beyond this, these omnibus bills are more often getting negotiated behind the scenes—negotiations among top party leaders and maybe some top committee chairs who are brought into the fold—in which they figure out what can and can't be done, what is going to be included, and what's going to be excluded from this bill so that leaders on both sides of the aisle can agree to pass this thing.But then it's brought back to the rank and file and presented to them by leaders who were the only people in the rooms where the negotiations were happening. They're the only people who can say with any credibility, “Oh, well, this is the only deal we could get, this is the best deal we...