Academic journal article Notre Dame Law Review

Legislative Gridlock and Nonpartisan Staff

Academic journal article Notre Dame Law Review

Legislative Gridlock and Nonpartisan Staff

Article excerpt


In a recent book, former Congressman Mickey Edwards blames much of the gridlock in Congress on the political parties because of their influence over both the electoral process and legislative governance. To address the latter issue, he would revise various congressional rules and procedures (including the Senate filibuster and the role of the House Rules Committee) and institute nonpartisan selection of leadership, committees, and committee staff in Congress. (1) This Essay considers his last suggestion--use of nonpartisan professional committee staff--separate from his other proposals. While his other ideas may have merit, they would require reversal of longstanding traditions in Congress. (2) In contrast, up until around 1970, the existence of nonpartisan professional committee staff was more the rule rather than the exception in Congress. Further, Congress currently delegates important legislative tasks to nonpartisan professionals and has done so for many years. In addition, the significant role staff plays in the legislative process is well-recognized. Thus, a change to nonpartisan professional committee staff might be an idea that could be effected in the near term and have some impact on legislative outcomes.

Part I provides background on the principal nonpartisan professional staffs in Congress, past and present. It describes the use of nonpartisan professionals by the committees and a number of legislative support organizations. Part II then explores the impact of nonpartisan professional committee staff on legislative gridlock. It first sketches out a "theoretical case" for why such staff might help reduce gridlock. The case is premised on nonpartisan staff having an expertise distinct from that of partisans, and sufficient influence in Congress to effect legislative outcomes. The remainder of Part II then raises several questions about this theoretical case, including whether the required "expertise" and "influence" of nonpartisan staff are, to some extent, incompatible.

Before we begin, a few cautionary notes. The role of political parties in Congress is sometimes explained as a way to make the legislative process more efficient. Members of the same party are thought to have certain preexisting relationships that can be drawn upon to help negotiate and produce legislative outcomes. Under this view, parties help to reduce the transaction costs of legislating. (3) Diminishing the role of the parties in Congress could, therefore, make legislative solutions more costly and even harder to attain.

Moreover, increased party influence in Congress (and the greater centralization of power that often accompanies it) has generally operated in the past to counter the decentralizing effect of the committee system (another labor-saving device used by Congress). (4) Reduced importance of the parties in Congress, therefore, could result in strengthened committees and subcommittees. Yet strong committees (and the seniority system) have themselves been blamed in the past for producing legislative stalemate. (5) Thus, even if Edwards is correct that party control over congressional governance somehow contributes to gridlock, it is not clear that the default arrangement (if party influence is reduced) would be an improvement. (6)

In addition, although this Essay concerns the use of staff in Congress, it takes no position on what the proper role of staff should be. Some have questioned, for example, whether the prominence of staff activities and influence is consistent with principles of representative democracy. (7) This Essay simply accepts as a given the role staff plays, and explores whether the unelected nature of staff might provide some advantage to help Congress overcome the forces causing gridlock.

Finally, this Essay also assumes, without passing judgment on, the underlying premise of this symposium--the existence of gridlock in Congress. The remarkable lack of productivity of the nation's divided government during the just-completed 112th Congress (2011-2012)--complete with a frantic, ludicrous effort at the very end of the Congress to unwind mechanisms the same legislature had created earlier to force itself to act on fiscal matters--nevertheless followed a two-year period of much greater legislative productivity (when control of government was unified under one party and the country faced a financial and economic crisis). …

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