Legislating in the Dark

Information and Power in the House of Representatives

James M. Curry

• Publisher: University of Chicago Press
• Year: 2015
• ISBN:
  9780226281858
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The 2009 financial stimulus bill ran to more than 1, 100 pages, yet it wasn't even given to Congress in its final form until thirteen hours before debate was set to begin, and it was passed twenty-eight hours later. How are representatives expected to digest so much information in such a short time.The answer? They aren't. With Legislating in the Dark, James M. Curry reveals that the availability of information about legislation is a key tool through which Congressional leadership exercises power. Through a deft mix of legislative analysis, interviews, and participant observation, Curry shows how congresspersons—lacking the time and resources to study bills deeply themselves—are forced to rely on information and cues from their leadership. By controlling their rank-and-file's access to information, Congressional leaders are able to emphasize or bury particular items, exploiting their information advantage to push the legislative agenda in directions that they and their party prefer.Offering an unexpected new way of thinking about party power and influence, Legislating in the Dark will spark substantial debate in political science.

Chapter One

Introduction

No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.

—James Madison, Federalist Papers 53

I love these members; they get up and say, “Read the bill.” What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?

—Representative John Conyers (D-MI)1

John Boehner (R-OH) was livid. On the afternoon of Friday the thirteenth in February 2009, the House of Representatives was finishing debate on the 340,000-word conference report on the American Recovery and Reinvestment Act of 2009 (ARRA). As the visibly tired minority leader took to the floor to denounce the stimulus package, he did not focus on his disagreement with the policies included in the bill. Instead, he underlined his displeasure with the expedited means of considering the bill. Filed by the conference committee late the night before, the final text, split into two documents, had been available to view only since early morning. Slamming his copy onto the chamber floor, Boehner raged, “Here we are with 1,100 pages—1,100 pages not one member of this body has read. Not one. There may be some staffer over in the Appropriations Committee that read all of this last night—I don’t know how you could read 1,100 pages between midnight and now. Not one member has read this.”2

Boehner was right. No member of the House of Representatives could possibly have read the entire conference report in the thirteen hours between the time it was filed and the time debate began on the floor, even without breaking for food, sleep, the call of nature, or to think through its implications. A person reading at two hundred words a minute would need more than twenty-eight hours to read the bill from start to finish.3 But despite the bill’s having changed considerably since its initial consideration in the House, and having grown substantially in size, it cleared the chamber by a nearly perfect party-line vote, with just seven Democrats voting with the opposition and one voting present. The overwhelming majority of the 246 Democrats who voted for passage could not have fully considered the details of the legislation, nor could the 176 Republicans who voted against it.

The process by which ARRA was considered is not an aberration. It is representative of the considerable influence that legislative leaders in the House of Representatives exercise over policymaking. The central theme of this book derives from a simple notion: information provides power in Congress. More specifically, the argument is that meaningful and pervasive inequalities exist among members of Congress regarding the information they possess during the legislative process, and these inequalities affect the balance of power and influence in the House. Namely, those holding formal leadership positions—party leaders and committee chairs—have extensive information about the legislation being considered and the political dynamics surrounding that legislation. Rank-and-file members of Congress, in contrast, have limited resources and find it very difficult to become informed about most of the legislation being considered at any time. Because of these limitations, they concentrate their legislative efforts on developing expertise in one or two issue topics, yet they must still obtain enough information about all bills considered in their committees or on the floor so they can cast votes. Consequently, they often must rely on those who have the information, their leaders, for the knowledge and cues they need to make decisions.

Information thus is a key source of power for legislative leaders, shaping the tactics and strategies by which they exercise leadership. Because their rank and file rely on them for information and cues, leaders can shape how their followers view policy proposals and the preferences they develop. Party leaders and committee chairs can provide their rank and file with information and frame legislation to focus their attention on reasons to support the leadership’s position on a bill and away from reasons to oppose it. Leaders expend considerable resources developing the talking points and messaging points that will be most effective in this regard, relying on their large staffs to gather intelligence about what is likely to persuade their rank-and-file members to stand with them on final votes while undercutting the messages and tactics of the opposition.

Furthermore, both party leaders and committee chairs have tactics to aggravate the informational inequalities in the chamber, making their rank and file even more dependent on them for information. These tactics include drafting bills behind closed doors and keeping legislative language secret throughout most of the process, changing the contents of legislation immediately before consideration in committee or on the floor, and exploiting or exacerbating the complexity of the legislation and legislative language. In taking these steps on some bills, leaders keep their rank and file and the opposition in the dark about the details of policy proposals until the last second, giving them little time to independently understand and evaluate items they are supposed to vote on. As these bills are rushed through committee or floor consideration, rank-and-file lawmakers often have nowhere to turn for information except to their leaders.

These leadership tactics—gathering, disseminating, and restricting access to information—will be explored extensively in this book, but ARRA is instructive as an introduction. Drafted and negotiated behind closed doors by a few key lawmakers in each chamber, the final text of the bill was not available for members to view until the midnight before floor consideration. Posted on the Rules Committee website, the final text was split between two documents. The first, intended to be an integrated copy, erroneously omitted several sections of the bill. Consequently the second document, a photo image of part of the original copy of the bill including these omitted sections, was posted a few hours later. Thus lawmakers and their staffs had two documents totaling over 1,100 pages to peruse if they were to understand the bill. Convening the House at 9:00 a.m., the leadership moved to immediately begin consideration of the bill, with the final vote that afternoon. In all, members had just a few hours to assess the bill and decide how to vote. Given its size and the confusion surrounding the actual text, anyone would have been hard-pressed to make an independent judgment. The Democratic leadership and the key committee chairs involved in drafting the final language, however, were standing by with meticulously crafted talking points meant to assure their rank and file that the bill met Democratic priorities, that it was a good stimulus package, that it would go over well with their constituents, and that they could feel safe in supporting it on the floor. The Republican rank and file likewise had to turn to their leaders, including Boehner, whose histrionics were clearly aimed at fostering opposition.

This information-based power has numerous implications for how we understand Congress and congressional lawmaking. As discussed in more detail in the next section, most congressional scholarship pays little attention to the institutionalized inequalities among members of Congress, including informational inequalities, and the effects these inequalities have on policymaking. Additionally, while most scholars see congressional leaders as important, they usually understand their independent influence as limited. Here, by contrast, I place legislative leaders front and center in the policymaking process and present their influence as significant and pervasive.

Additionally, the findings in this book further our understanding of the underpinnings of party power in Congress. Congressional leaders oversee parties that, although more unified than in the past, are still fairly decentralized and heterogeneous. Unlike their contemporaries in most parliamentary systems, leaders cannot control membership in the party or who wins the party’s nomination to run for a seat in the chamber. Furthermore, each representative is elected from a distinct geographic district, represents a distinct constituency, and thus faces electoral pressures that can conflict with the party’s goals. In shaping the information these lawmakers have about the legislation being considered, leaders can mobilize their diverse followers to act like programmatic parties and enact partisan agendas. But as effective as it is, this method of leadership comes at a cost. In shutting most lawmakers out of the legislative process, stifling their voices, and keeping them in the dark, leaders undermine the quality of legislative deliberations and dyadic representation in the House of Representatives.

The principles of this theory likely extend beyond the House of Representatives. In any legislature where informational inequalities benefit leaders, these dynamics are likely to be found to some degree. Although there is more parity among US senators in terms of the information and resources they possess, leaders routinely have information their rank and file lack. In many state legislatures, the dynamics uncovered here are likely to be even more dramatic, especially in part-time or citizen legislatures whose rank-and-file representatives have little or no staff and spend most of the year away from the capitol. Under these conditions, leaders are likely to have remarkable ability to leverage information to mobilize their ranks.

The evidence in this book draws on a number of methods of investigation, including participant observation in congressional offices, elite interviews with members of Congress and their staffs, and quantitative analyses of a dataset of important bills considered in the House from 1999 to 2010. However, before discussing these details, it is important to make clear how this book contributes to our understanding of congressional leadership and of Congress in general.

Scholarly Perspectives on Congressional Leadership

Within congressional studies, leaders are poorly understood. Despite decades of interest, we lack a complete understanding of the factors that constitute congressional leadership, the sources of power that leaders rely on, and how greatly they can exercise these powers. As David Truman (1959, 94) put it decades ago, “Everyone knows something of leaders and leadership of various sorts, but no one knows very much. Leadership, especially in the political realm, unavoidably or by design often is suffused by an atmosphere of the mystic and the magical, and these mysteries have been little penetrated by systematic observation.”

Despite some excellent studies of congressional leaders and leadership, these words continue to ring true.4 The study of legislative leaders in Congress not only is underdeveloped, it has been misdirected. Specifically, there are three broad tendencies that have led to a scholarly misreading of congressional leadership. This book addresses and challenges each of them.

Inattention to Inequalities

The first tendency has been a lack of attention to the deep inequalities among members of Congress, particularly in the information they possess during the legislative process. While congressional scholars generally do not view lawmakers as perfect equals, how institutionally unequal they are is underappreciated, and the consequences of these inequalities are not well understood.5 This trend has been accentuated by an empirical focus on roll-call voting (on this point see Clinton 2012; Clinton and Lapinski 2008). It is at the voting stage that members appear most equal, with each possessing one vote regardless of institutional position. But a focus on roll calls obscures the significance of activities before the vote, during which members of Congress are less likely to engage as equals. What is more, these earlier, often unseen stages are perhaps even more important than voting. As Richard Hall (1996, 2) put it after years qualitatively investigating congressional committees, “floor voting is only one and probably not the most important form of participation in the legislative process.”

Underscoring this trend has been a scholarly focus on lawmaker preferences. As Lee (2009, 24–46) extensively covers, in recent decades the preeminent paradigm in the study of Congress has centered on how legislative decisions are driven by the policy preferences, or ideologies, of individual lawmakers. This focus has paired well with using roll-call voting as the primary means of studying Congress. Scholars have used this approach to analyze how well legislator preferences explain numerous congressional phenomena, including policy outcomes, gridlock, committee composition, and more. However, as Lee (2009, 46) puts it, this focus has “led to diminishing scholarly interest in patterns of communication among members, cue-taking, caucus deliberation, and party consensus-building.” Especially relevant to this study, it effectively buries concerns about informational inequalities, about how informed members of Congress are on the details of the policy proposals they vote on, and about the way lawmakers become informed. The most abstract studies in this tradition, those employing a spatial modeling approach, often assume away concerns about information in the interest of parsimony, assuming ab initio that lawmakers have complete information about legislative proposals and how they relate to their own ideological preferences (e.g., Krehbiel 1998). While few of these scholars would likely argue that this assumption is perfectly true, that informational concerns are often assumed away suggests that many scholars do not view them as important or influential enough to take into consideration when studying Congress.

Some studies do recognize information disparities in Congress, but they ultimately conclude that these inequities do not strongly influence policymaking. For Krehbiel (1991) informational problems are central to legislative organization, but committees and other legislative institutions effectively minimize any negative effects of informational disparities and instead leverage informational differences to benefit the chamber majority. Yet Krehbiel’s evidence cannot determine whether members of Congress react positively or negatively to the actions taken by those with superior information because they approve or disapprove of these actions or because they simply do not have enough information to judge them. Kiewiet and McCubbins (1991) also recognize that “hidden information” is a problem in congressional delegation to leaders and other entities, and like Krehbiel they find that this problem can be mitigated. However, their analyses focus primarily on the delegation of authority to standing committees and executive branch agencies rather than to committee chairs or party leaders.6

This book argues instead that information asymmetries are central to understanding the influence of party leaders and committee chairs, and that the limited attention congressional scholars have paid to informational inequalities has undermined our understanding of lawmaking in the House of Representatives. This lack of attention is curious given the prevalence of such attention in other areas of study, including bureaucratic power (see Weber 1991; Niskanen 1971; Banks and Weingast 1992), presidential power (see Schlesinger 2004; Rudalevige 2005), organizational leadership (see Mulder 1971), and economics (see Akerlof 1970; Spence 1973).7 As will be shown, information asymmetries systematically benefit those holding formal leadership positions in Congress, as they leverage their advantages to influence how legislation is drafted, how lawmakers perceive that legislation, and ultimately what is passed in committee and on the floor.

Underestimating Leadership Influence and Power

A second tendency in the study of Congress has been to underestimate the power and influence of legislative leaders. While congressional scholars generally view leaders as important, the dominant framework for understanding their influence—a principal-agent framework—has led them to systematically understate how much leeway leaders have to act and how much influence those actions have on the behavior of rank-and-file members of Congress and on the policymaking process.

Some scholarship sees legislative leaders virtually as clerks. For example, Krehbiel (1991) presents delegation to legislative leaders as a division of labor meant to create specialization, reduce informational barriers for the chamber as a whole, and reduce the inefficiencies inherent in collective action. Party leaders exist to grease the skids for successful policymaking, but their actions are aimed at pleasing the parent chamber. Similarly, committees exist to accrue the specialized knowledge needed to draft informed legislation, but they must produce policies satisfactory to the chamber’s majority or risk rebuke on the floor. While legislative leaders are expected to play an important role in policymaking, because all their decisions must be ratified by majority votes, the real power lies with the rank and file.

In recent decades, theories emphasizing the importance of contextual and environmental factors for legislative leadership have gained prominence. While most of these studies present leaders as an integral part of the legislative process, they see their influence as constrained by the preferences of their rank and file. In other words, leaders can and do exercise significant authority in the House of Representatives, but only when there is broad agreement within the party to act aggressively to achieve generally agreed-on goals. Cooper and Brady (1981), for example, find that differences in the leadership styles of speakers Joseph Cannon (R-IL) and Sam Rayburn (D-TX) are explained by party strength during their times in office. Cannon was able to act more aggressively than Rayburn because a unified Republican caucus granted him the authority and the procedural powers to do so. Aldrich and Rohde’s (2000) theory of conditional party government extends this perspective, arguing that under conditions of intraparty unity and interparty polarization, lawmakers will give their leaders more authority to aggressively push the party’s agreed-on policies. Kiewiet and McCubbins (1991, 54–55) likewise find that the checks on the actions of party leaders decrease as preference homogeneity increases. Sinclair (2012, 140–42) highlights the extensive influence legislative leade...