^B00:00:13 >> John Haskell: Welcome, everybody, to the Library of Congress this afternoon. I'm John Haskell, the director of the Kluge Center at the Library of Congress. In the words of the charter, our center was created, quote, "to reinvigorate the interconnection between thought and action through conversations and meetings with members of Congress, their staffs, and the broader policy-making community in order to bridge the divide between knowledge and power." So on a day-to-day basis, what that means for us is -- at Kluge is that we support scholars in residence here doing innovative and specialized work, and we project scholarly work to a broader audience in events such as this one. We have a few other events. I hope you take note of material we have out in the front when you came in. Evan Thomas and OC Thomas, who wrote the recent biography -- acclaimed biography of Sandra Day O'Connor. We'll be hearing conversation at noon on the 22nd of this month with Colleen Shogan, assistant deputy librarian. October 30, Ronald White, who you've probably heard of, biographer of Lincoln and Grant, will be talking about leadership lessons from Lincoln and Grant, on October 30 at 4:00, reception to follow. And on November 7, for kind of a political junkie audience like this, we have dynamics of the presidential primaries. I'll be talking with Amy Walter of "The Cook Political Report" and Julia Azari, who was recently at resident -- in residence at the Kluge Center, who's at Marquette University, and is active in scholarship in that area. So I hope you'll consider coming to those events. Let me introduce the esteemed panelists here this afternoon. First, Frances Lee, who is a professor of politics at Princeton University. You can see in your bio more details. She came to Princeton after 15 years at the University of Maryland. She's the author of "Insecure Majorities, Congress and the Perpetual Campaign" in 2016, and "Beyond Ideology, Politics, Principles, and Partisanship in the Senate," 2009. Also, those of you who have been in college and took a Congress class anytime in the last 30 years or so [laughter] probably were assigned -- since it has about 90% market share, "Congress and Its Members," which Frances is one of the principal authors of that over the last, what, 10 or 15 years, I think. She was in residence at the Kluge Center just this summer. She just left that residency to go back to Princeton, and she's been working on a book that'll be coming out next year with Jim Curry of the University of Utah, "The Limits of Party, Congress and Lawmaking in a Polarized Era." Lamar Smith is also on the panel, former Chairman Lamar Smith. You know, I've learned a lot about Lamar Smith in the last couple of years since coming to the Kluge Center. I didn't know him before. I've known Frances for probably at least a decade, and worked with her on many things. But what I've come to find about Lamar Smith, since he is -- he's been such a fan of the Library of Congress. He just retired from Congress in January, as you may know -- is that he's -- regardless of one's politics, he's a true gentleman, respected on both sides of the aisle, and we're honored to have him as a champion of the Library. I should also note that we had Karl Rove at an event this summer, and he pointed out to me that he was the campaign manager of his first campaign [laughter], and wanted to trumpet -- this is back down in Texas. He wanted to trumpet the fact that Lamar was captain of the rifle team when he was at college. He didn't include in there that the rifle team was at Yale [laughter]. He didn't think that would sell quite as well. That's how Karl Rove told the story. Lamar might be able to correct a thing or two about it. So Lamar represented -- is that more or less accurate? >> Hon. Lamar Smith: Yeah, close enough. >> John Haskell: Close enough. Lamar represented San Antonio and environs for about 32 years in Congress, 21st congressional district. In the modern era, there haven't been other members who've chaired three committees. He chaired three committees in his time in Congress. He was, over the last several Congresses, in a study by the University of Virginia and Vanderbilt University, named one of the most effective members, including the most effective member in the 112th Congress. And was policymaker of the year in 2011, according to "Politico" and "Politico Pro," largely because of his effort in patent reform legislation. So what we're going to do now -- move directly to the discussion, is Frances, based on her research this summer, is going to give a short presentation, and then we're going to talk about it, see if we can poke holes or whatever. So I'm going to turn it over to Frances, who's going to do a short presentation. The slides will be up on the screens. ^M00:04:50 ^M00:04:54 >> Frances Lee: I want to start by thanking John Haskell and the Kluge Center for inviting me to participate in this event, and Congressman Lamar Smith for being here with me. Our goal today in this discussion is to examine how congressional lawmaking has and has not changed. We want to get a more complete perspective than is normally on offer in media portraits of the institution. Congress has never been popular, and it's always easy to market stories claiming that congressional performance is worse than ever. But our goal in this panel is to take a balanced look, considering continuities as well as changes in congressional performance. I'm going to highlight one key change, which is that political incentives today are more unsuited to bipartisanship than in other eras. It's harder to reach bipartisan agreements than in the past, but nevertheless, there is an important continuity, which is that bipartisanship is no less necessary for legislative success. Even though Congress is much more party-polarized, it has not gotten any easier for majority parties to succeed without winning at least some buy-in from the opposing party. In understanding why political incentives are less aligned for bipartisanship, we need to pay attention to the intense partisan competition of today's era. This is evident in a number of ways. One, we've had divided government 75% of the time since 1980. In the House of Representatives since 1980, Democrats and Republicans have each held majority status for 10 congresses. In the Senate, Republicans have held a majority for 11 congresses since 1980, and Democrats for nine. The evenness of this partisan balance is not normal for U.S. history. This first figure displays a simple measure of two-party competition since the Civil War. It's just the average of the Democratic Party's share of the vote for president, the Democratic Party's share of House seats, and of Senate seats. I then take the difference from 50, so that I can show periods with Democratic majorities above the line, and periods with Republican majorities below the line. And taller lines mean that a party is more dominant in that era. The period since 1980, circled on the graph, stands out from this long time series for its narrow and switching majorities. The more typical pattern over this long period is for one party to enjoy a significant, persistent advantage over the other. The Republicans were dominant in national politics for a decade after the Civil War, and then again between 1896 and 1932. Democrats were similarly dominant for decades after the New Deal. The period most similar to today's competitive environment is the partisan stalemate after the Hayes-Tilden contested election of 1876 until the elections of 1894. These decades of the late 19th century are probably the most analogous period to the present, a period of close party competition, divided government, policy stalemate. There were two other short periods of close competition during the Progressive Era, and then under Truman and Eisenhower, but we are today in the midst of the longest sustained era of near-parity between the parties since the Civil War. Competition for power reduces incentives for bipartisanship, as is evident in the rise of party conflict in roll call voting in both House and Senate, shown here in this graph. It is hard for a minority party to work productively with the majority party at the same time as it's contending that the majority party's doing a bad job, and should be thrown out of power at the next opportunity. When the minority party works productively with the majority party on legislation that both parties can support, it effectively gives us a stamp of approval to the status quo allocation of power. It's tantamount to conceding that it can achieve things that the party wants, even though it's in the minority. During the long era of the seemingly permanent Democratic majority of the 20th century, it was easier for chairs and ranking members to have productive working relationships. For much of that period, the Republican Party did not perceive a chance to win majority status. A minority party under those circumstances has less incentive to withhold cooperation in favor of proposing partisan alternatives. Today, both parties see themselves as potential majority parties, and are more reluctant to jeopardize their argument for retaking control by working cooperatively with the opposition. Close competition for power also reduces incentives for bipartisanship, because the minority party anticipates being in a stronger position after the next elections than it currently is. It thus is less willing to strike any deal now, but despite these incentives, however, bipartisanship remains in most cases the only viable path to success in Congress. ^M00:10:06 Congressional lawmaking is still almost always bipartisan. Despite intense and rising partisan conflict, Congress does not legislate on the basis of narrow partisan majorities. Today's Congress does not enact more laws on party-line votes than the Congress of the 1970s. This figure shows the average percentage of minority party members voting in support of legislation that successfully passes the Senate. So as you can see here, the average rarely dips below 50%, the benchmark line, meaning that most legislation garners majority support from both parties. Most legislation that succeeds passes with majorities of both parties in favor. This is true for the 12 to 15 most important laws enacted in a Congress, shown in the red dotted line, as well as all laws, shown in blue. This pattern is not driven by divided government. Divided government has been the norm in recent years, but there have been some congresses with unified control during these periods, and there's only modest differences between congresses with unified and divided control. The 111th Congress of Obama's first two years stands out for low levels of minority party support on laws, as does the 103rd Congress of Clinton's first two years with unified Democratic control. And you can see those outliers on the graph. But the same pattern isn't present for unified governments under George W. Bush and the 108th and 109th Congresses, and even the 115th Congress under Republican control in President Trump's first two years isn't out of the ordinary, in terms of bipartisanship. The same is also true of bills that pass the House. The most striking thing about these data is a lack of any trend line. Even though the parties have polarized in Congress, there's been effectively no change in the frequency with which the minority party legislates -- the majority party legislates over the opposition of the minority party. Most laws today continue to attract significant minority party support, just as they did 40 years ago. To delve more deeply into this pattern, my co-author, Jim Curry of the University of Utah and I focused specifically on the capacity of majority parties to enact their agendas. We wanted to know whether today's more-cohesive parties are better able to enact their policy priorities than the less-cohesive parties of the 1980s. To do this analysis, we compiled a list of all the priority agenda items for each congressional majority party, each Congress going back through the 1980s. To do this, we read the opening speeches made by the Speaker of the House and the Senate Majority Leader, taking note of the issues that they flagged for attention in the upcoming Congress. We also looked at the bills that were inserted into, you know, the low bill numbers reserved for the Speaker of the House and the Senate Majority Leader, the HR one through 10 in most congresses, S one through five. These efforts yielded a list of 265 priority agenda items over the period between 1985 and 2019, and then we just constructed legislative histories of each of these agenda items, asking whether majority parties achieved most of what they wanted on an agenda item, whether they achieved some of their goals. Or whether they achieved none of their goals, and that legislative drive failed. Our first finding is that the modal outcome is failure 48% of the time on average over the period. Roughly half the time, the majority party fails to achieve any of its goals on an agenda item. That means that the legislative drive falters, and no law is enacted. Congresses with unified-party government don't fare that much better than congresses with divided-party control. There's a 50% failure rate in divided government, as compared to 43% failure rate in unified government. The second-most likely outcome, 31% of the time, is that the majority party achieves some of its goals, but has to compromise on key items in order to get the bill through. The least-likely outcome is a clear win. This is 20% of the time, where the majority party does most of what it set out to accomplish. Clear victories are more likely to happen in unified government than in divided government, but failure is more common in both. The bottom line is that majority parties can rarely deliver on their agendas. Clear partisan victories are highly unusual. Our next question was, "Well, when the majority does succeed in getting some or most of what it wanted, how did it do so?" It is unusual for a majority party to enact an agenda priority over the opposition of a majority of the minority party in both chambers of Congress. Over the whole period since 1985, this only happened on 20% of majority party agenda successes. The 111th Congress, Barack Obama's first Congress, stands out as highly exceptional here. Every agenda item on which the Democrats succeeded that Congress happened over the opposition of most Republicans. Democrats did not succeed on an unusual share of their agenda items that Congress, but when they succeeded, they did so on a partisan basis more often than is normal. But this was not the start of a trend. It was just a highly unusual Congress. Instead, the far more likely way a majority party succeeds on its agenda items -- this is 78% of the time -- is with the support of a majority of the minority party in at least one chamber, shown here in blue. In fact, normally, 84% of the time, the majority party has the support of at least one top leader of the minority party, meaning the Minority Leader or the Minority Whip in at least one chamber of Congress. Since 1985, there have only been 12 majority party agenda items on which a congressional majority party got most of what it wanted, and did so over the opposition of a majority of the minority party in both chambers, and over the opposition of the elected party leaders of the minority party in both chambers. The bottom line is that our compromise-inducing political system still requires bipartisanship. This is particularly true under conditions where the two parties are evenly balanced in electoral strength, and therefore have to share in power. Bipartisanship is how things get done today, just as in the past. In most cases, the only alternative to bipartisanship is gridlock. Political incentives make it harder to achieve bipartisanship, but it's just as necessary for legislative success as ever. Thanks. >> John Haskell: Thanks, Frances. Point out -- I feel a little out of place. I'm the only one up here without a southern accent [laughter]. So if I need to talk a little slower -- I don't know. For you guys, do I need -- anyway. So in your experience, Lamar, you know, what's your response to that? I mean, were you able -- I mean, you're just a sliver, you know, even though you had very significant committee chairs at science, and at judiciary. That's only a small percentage of the larger picture of what Congress is up to. What's your experience in terms of on the partisanship, bipartisanship with your legislation? >> Hon. Lamar Smith: Before I answer that question, you won't mind a pitch for the Library of Congress, I assume. >> John Haskell: I think we can stand that. >> Hon. Lamar Smith: And [laughter] that is just to thank you all for being here, and just to say what we all know to be true -- and that is that the Library of Congress is just a magnificent structure. And the institution is impressive in every respect, and every activity, every function, every event that is hosted by the Library of Congress -- and this sounds a little serving, I realize -- but is worth coming to, just because they do such a great, great job. And to go back to your question, though, John, real quickly -- and I wanted to mention -- Professor Lee's thesis -- it's counterintuitive. Because we wouldn't have expected today that, given the amount of partisanship that we perceive -- we wouldn't have thought that the number of bills that are enacted today would be pretty much constant over the last 30 years or so. And that is counterintuitive, just because it's not what we would expect, but on some level -- I guess I'm looking at it from a congressional point of view. On some level, it's a little bit reassuring that, despite the partisanship, Congress is still productive. Now, it may not be a high level of productivity, but at least it's been constant as it's been going through. And one of the explanations I think for -- and maybe a -- something -- a metric to keep in mind is that every year, there's something like 10, to 12, to 13,000 bills that are introduced by members of Congress. Only 3% become law. So it's only one out of 33 chance you have at passing a bill if you introduce a bill, and so, that productivity is low, but at least it's fairly constant across the board. As far as the thesis of bipartisanship, I just couldn't agree more, and I might try to elaborate a little bit on it. And that is, you learn very quickly, if you're a member of Congress, that if you want to pass a bill, you're going to have to amend it. You're going to have to make compromises, because the member of Congress who introduces a bill and says, "I'm never going to change a word," is guaranteed to have one result, and that is they will never enact legislation. So that partisanship that has remained constant as well, and this is great original research, and I think will be valued for years to come. Because it shows Congress in a little bit different light. But nevertheless, that bipartisanship is absolutely essential, and I'll tell two quick stories. And this is a time for me to acknowledge that, unknown to me, I have former staff members with whom I have worked who have packed the audience. And there are five of them in the middle back here. ^M00:19:53 But the reason I want to single them out and make clear -- chief of staff, and personal office chief of staff on committees, staff director of counsel, subcommittee director, and all the others -- that nothing we would've done in these committees, be it science committee or judiciary committee, would have happened without just superb staff who are dedicated to the interests of the country, and to the interests of the committee as well. So I thank them publicly for making me look good when I happen to look good, but they do not need to assume responsibility for when I looked bad. But their efforts are appreciated. On the science committee -- and this is going to surprise you, because this goes contrary, again, to what you might've read or thought. But on the science committee, I think we took about 34 bills to the House floor. Thirty-one roughly of the 34 were bipartisan bills. Only three were absolutely partisan, where only one party took them to the floor. You never read about the science committee -- and I don't know about the other committees. So 90% of the legislation we took to the floor was bipartisan, but there aren't any stories about that. The stories are about the 10%, the three bills that were partisan, and that's what, unfortunately, the media seems to focus on, because there's conflict there. There's partisanship there, and so forth. But I think the unwritten story is the degree of partisanship that continues to go on. >> John Haskell: So on those bills, I mean, the ones that were partisan, that only got Republican votes on the House floor, did they -- were they -- >> Hon. Lamar Smith: Yeah, they never became law, so -- >> John Haskell: -- they never became law. That's a lesson, too. >> Hon. Lamar Smith: -- that proves the thesis as well. And I -- talking a little bit longer than I expected to, but one quick story from the judiciary committee -- and -- is this. And when I became chairman of the judiciary committee, I was a conservative Republican. The ranking Democrat was John Conyers from Detroit, Michigan, and he had 100% liberal voting record. And so, we were on opposite poles on the political spectrum, and the week I became chairman of the judiciary committee, I went to John. I said, "We're not going to agree much on issues, but I'd like for -- I'd like to look for common ground, because the judiciary committee is not known for enacting bills, and I'd like to be a productive committee and committee chair." And so, I said to John -- I said, "I'd like to try something new, and that is -- would you agree with me that we would never mention each other's name personally in any context whatsoever? We would never mention each other's name in a hearing, at a mark-up, in a speech, in a news release, so that we would disagree on the issues, but we wouldn't be attacking each other's integrity." And he thought about it for 30 seconds, took out his hand, and we shook on it. For two years, we never mentioned the other person's name, and every other weeks, our -- I asked that our chiefs of staff get together for lunch and look for areas where we might have some common interests. And yes, we'd each introduce these big bills, but where those concentric circles might overlap, and it might just be a part of those bills, we went forward with that. And at the end of the Congress, we had actually enacted more bills than any of the other 15 committees in Congress, and it was because of John Conyers' willing to put aside personalities, and put aside easy -- and me too, I guess -- put aside the personal attack in favor of trying to be constructive and get legislation passed. So I think it can be done. It really depends on the individuals. It takes two to tango, and so, you have to have a majority member and a minority member agree to that kind of a perspective. But I think sometimes it can work. >> John Haskell: Now, Frances, on some of the data you threw out there, I did a little research. I didn't tell you about this, but a national journal reported in the early '80s that the space -- in the 435 members of Congress, the space of overlap between the most conservative Democrat and the most liberal Republican was 350. And at that time, 57 of the 100 senators fit in that space. And then, when you fast forward to the last few years, in the Senate, it's been zero overlap in the space, and in the House, it's been, you know, anywhere from -- depending on the year, five to 15. So just like you were suggesting, I mean, the ideology homogeneity has increased tremendously within the parties. So what's getting in the way of them being able to more their agendas better, given that they don't have the -- it looks like they don't have the same internal disagreements that they had, even as little as 35 years ago? >> Frances Lee: Well, I'll start by saying I have some questions about those sorts of measures that claim to show that members lack any ideological agreement across the aisle these days. Those are based on roll-call votes generally. If we look only at the roll-call votes that result in the enactment of legislation, there hasn't even been any polarization in Congress. It's only if we look at the full, aggregate roll-call record. A lot of those roll-call votes are messaging votes, are -- you know, are designed to highlight the differences between the parties, to communicate those to external constituencies. They're not resulting in legislation. If we look at the consequential votes, there's been much less change in Congress than those data would portray. And what we find is, when you look at -- when parties try to move forward on their agenda items, they often struggle to get on the same page internally. Now, we don't see parties divided along -- internally along ideological lines the way the old Democratic Party of the 20th century was, with the southern Democrats versus the northern Democrats. There's less -- no question, there's less ideological diversity between the parties, but even with that said, it's not easy for parties to get together on major legislation. That -- it -- the issues are complex. And so, they struggle to get -- to move forward on their agenda items. And it's just as common for majority parties to fail because they can't get a bill out of committee as to fail because the minority party is blocking them through a filibuster in the Senate, or some other veto player wielded by the other party gets in the way. >> John Haskell: So, Lamar, one thing that -- sort of to tie into that is that -- but just as an observer, you know, I would see Republicans get the majority. You know, there's been all these flips, as -- in the last few years, last few -- couple decades, like Frances -- and yet, the new party always -- you know, the story is, they're going to get stuff done, get their stuff done. Now, you were there, and what's your experience with that, whether you were switched to the minority or becoming the majority? >> Hon. Lamar Smith: Maybe I need to describe the difference between being the majority and the minority. I've been in the minority twice. Believe me, I would never voluntarily go back. It's hard to describe what it's like being in the minority, and I wish I could say the minority was more influential. But we cast about 500 votes every Congress, every two years. When you're in the minority, you're going to lose 499 out of those 500 votes, and that's a little dispiriting, knowing that every time you go to the House floor, you're going to be on the losing end. And I've heard it said that being in the majority is like riding a horse in the parade. Being in the minority is like walking behind the horse in the parade [laughter]. It's almost not polite, but that's a little bit too graphic. But anyway, you get the idea that majority is far more powerful, I guess I should say, than otherwise. I want to add one more thing to what Professor Lee said, and you mentioned the filibuster. I guess from -- I'm looking at this from the House point of view, but I attribute a lot of our inability to enact legislation to the existence of the filibuster. And the filibuster, of course, is a threat by a member of Congress -- a senator. They can be sitting at their desk. They pick up the phone. They threaten to filibuster, and suddenly, even for an amendment to come up on the Senate floor, much less to pass legislation and bring legislation up to be voted upon -- suddenly, the threat of the filibuster triggers a 60-vote requirement to bring up that amendment, or to bring up that piece of legislation. That is a high hurdle, a very high hurdle, particularly if the majority party only has 52 or 53 votes. They've got to find seven or eight from the other side, and that's not easy. But the frustration from a House member -- in the last Congress, when we finished at the end of last year, the House had over 400 pieces of legislation sitting on the Senate doorstep, over 400, and almost all of those did not get brought up because of the threat of a filibuster. Of course, there's a time factor as well, but a lot of those bills were not controversial. A lot of those bills would pass the House with no -- under what's called -- would be unanimous consent, and not a vote against them. But they couldn't get them past the Senate because somebody would object to it, and they'd have to get 60 votes and take several days to debate that, and decide whether to go forward or not. So to me, if we eliminated the filibuster, there would be other mechanisms in place, I think, to stop bad legislation, but at least we would for the -- on behalf of the American people, start debating and voting on more pieces of legislation. And then maybe we could increase that 3% of the bills that actually get enacted. >> John Haskell: Yeah, so one thing, Frances, when you were -- when you had your charts up, and you have a dramatic increase in partisan roll-call voting at the same time as legislation needs to be bipartisan. And remind us how that works. How do you square that circle? >> Frances Lee: Well, a lot of bills that pass the House on partisan lines end there. They don't go through the full legislative process. So there's a screening. So that needs some level of bipartisanship to get all the way through the process, in most cases. Part of that is the story of the veto players in the Senate, the Senate filibuster, the need for 60 votes in the Senate. That's -- that is very -- that is a very important feature of how Congress works today. ^M00:29:47 But it's also the case that even though the Senate filibuster is the most common reason why the majority party fails on its agenda items, the most frequent, the second-most frequent is an inability to get a bill out of committee, a committee that you control, that the majority party controls. So they still struggle with intra-party disagreement. They don't -- it's not as public as when failures are due to being blocked with a Senate filibuster, you know, a failed cloture vote on the Senate floor. These are very public. The news media focus a great deal on partisan conflict. And so, when it's surfaced in this way, it becomes a front-page story. When bills fail quietly in committee, it's less of a story, but that's very common as well. >> John Haskell: So one of your messages -- your key message, or a key message is that just as much bipartisanship in the laws that are passed now, significant laws, important laws, substantive laws, as before. Other scholars have found that -- and I'm curious how this -- exactly how this is measured -- that there's -- that Congress is passing as many pages of legislation, and even as many provisions into law as they did 30, or 40, or 50 years ago, which is really showing they're about as productive as 30 or 40 years ago. So how are they measuring -- how are scholars measuring that -- you know, the pages thing is one thing, but how are they measuring, let's say, provisions? >> Frances Lee: Well, they -- I mean, that's via the U.S. code. So they look at how legislation is codified, and so they -- counting the provisions that are enacted, Congress by Congress. So it -- the conventional wisdom that Congress is gridlocked and gets nothing done just isn't borne out by the data. The data do not show this. The data show that Congress continues to produce legislation, in terms of, you know, the amount of legislation, sheer quantity, at a relatively constant rate. In order to judge Congress as being gridlocked, you have to have another standard. You have to have a list of things that you think Congress should be working on that it's failing to act on. So -- and in many cases, that's ideologically inflected, but if we look just at the data, we don't see this story of Congress being less productive today than it has historically been. It's hard to act -- it's hard for Congress to do anything. >> John Haskell: It's hard to do this stuff. Did you have something -- >> Hon. Lamar Smith: I was going to say that -- and it's -- I agree 100% with what Professor Lee has said, that we're just -- Congress is just as productive today as it has been for the -- anytime in the last, say, 30 years. But it's a low level of productivity, and I think that's what's frustrating for the American people, is that, you know, we're squabbling. We're arguing. We're sometimes calling each other names, and maybe it's just good to remind ourselves that democracy is messy. Remember Winston Churchill's quote that democracy is the worst form of government, except for all the others? I mean, we can be grateful that we had this kind of open debate. Yes, it's frustratingly slow, and sometimes we just avoid going over the cliff at the last second. But nevertheless, it does work, as Professor Lee has been pointing out, and it's not working any less so today. But democracy is not fun to watch, but it -- in the end, I think it does produce results, and maybe not all the results we want. But it's still -- it's still there. And so, that's -- that just -- I try to reassure myself as much as I'm trying to reassure you all. >> John Haskell: -- you know, it's frustrating, but, you know, you can't overstate how much this flies in the face of conventional wisdom. >> Hon. Lamar Smith: yeah. >> John Haskell: I mean, there's not a day, certainly not a week that goes by where you don't read that Congress is unproductive. Just last week, quote from -- in "Politico" that there was an assumption of an unproductive Congress where, quote, "fewer bills voted on, fewer laws made, more of those laws naming post offices or something else inconsequential, and so on." You see that all the time. Scholars say that. >> Frances Lee: But there's just -- >> John Haskell: So why exactly is the conventional wisdom wrong? What are they miss -- what is it missing? I don't know what the conventional wisdom is. >> Frances Lee: -- they count the bills enacted, and so, there are fewer laws being enacted. But the laws are much longer, so that the amount of legislation, as gauged by new laws enacted, new provisions, new pages of legislation -- that's not come down. So there's more omnibus legislating, fewer legislative vehicles successively navigate the legislative process, but the -- the amount of legislation is -- has not come down. >> John Haskell: So that's -- but you all have hinted at significant ways in which Congress has changed, particularly what you said about the increase in the filibuster, cloture motions. What ways have you observed that Congress has changed significantly? You know, you were there 32 years. You go back into the same -- more or less the same period that you're studying. >> Hon. Lamar Smith: Right. Well, I can speak maybe a little bit about -- >> John Haskell: At least in the lawmaking process. >> Hon. Lamar Smith: -- how it's changed. I guess I don't see that much change from that point of view, and the first half of that, I was not even a subcommittee chair. So it took a while to get to be in a position where I might actually enact legislation, but there was partisanship back in those days, just like there is partisanship today. So it's not like partisanship is a new -- is a new aspect of Congress. I think maybe the untold story is not only the bipartisanship that continues to get passed, but also the bipartisan friendships that exist. They never get told about, because they're not conflict, and they're contrary to the partisan narrative that so many people feast upon. But I think, throughout the time I've been in Congress, there have been wonderful friendships that have been forged. Legislation has passed. We've learned about only bipartisan legislation is going to pass, and that's been true for the last 30 years. The only thing I noticed from one of Professor Lee's earlier charts, and I will try to explain this, if there's a way -- the last 30 years have been pretty, well, constant in the number of bills that have been enacted. But if you go back to the '50s and '60s, twice as many bills got enacted during that time period, and I've been trying to think -- and maybe you can give us your thoughts, Professor Lee. I've been trying to think what explains twice as many bills getting passed in the ''50s and '60s versus the last 30 years. But I think, for the first time, I'm beginning to think that it may be a factor, and may depend on more than Congress. It may depend on who's president of the United States, because in the 1960s, you had the JFK assassination. You had LBJ become president, and he passed this flurry of activity -- I mean, had this flurry of activity passed in any of number of bills -- Civil Rights bills, all the other bills, in part because of the assassination that had occurred and the need for the country to see that there was movement, and action, and success, and productivity in Washington. So I think at least in the '50s and '60s -- and then, of course, in the '50s, we had Eisenhower, who was pretty low-key and easygoing, and maybe legislation -- bipartisan legislation got more -- got passed more because of him. So I guess I'm just trying to think out loud. What is it that accounts for twice as many bills being enacted in the '50s and '60s versus the last 30 years? I'm just simply saying that whoever is in the White House might have some impact, as well as the Speaker of the House. I think maybe that's my point, but I think a lot of it depends on not personality -- on a personality, but it depends on individuals, and their desires, and their skills, and their goals. And you can't -- you can't discount that factor when it comes to legislation. >> Frances Lee: Well, legislative practices have changed greatly over the time period. One key practice that has changed is that legislation is just a lot longer, that, you know, you -- it used to be not unusual for Congress to pass a five or 10-page bill. And you rarely see that anymore. So there's more centralization of the process, that the party leaders play a bigger role in putting together these big legislative packages that then get cleared, that committee chairs work more closely with party leaders today than in the past. And especially during -- if we go back to the era when committee chairs were -- you know, served because of their long seniority, their tenure in office, or tenure on the committee, that that gave them a base of power that could sometimes put them at odds and allow them to be at odds with the leaders of the party. We see bills that get enacted today that don't go through a committee process, that, you know, they go around so-called "regular order." That happens with a reasonable degree of frequency. It used to be that bills that were passed had gone through the committee process in all cases, nearly 100%. Now, it's more like 60% of bills that pass actually went through a committee process. So there's a lot of alteration in how Congress works internally, and yet -- and when we look at the final outcomes of the legislative process, they are similarly bipartisan, and there's a similar amount of legislative pages and provisions enacted. So we can -- that -- there's been a great deal of change in the process, and yet, not nearly so much change in the outcome. >> John Haskell: So what do you two think might be impacts of that change? What difference does it make whether it's a more open process with committees, and members amending on the floor, and then leaders not controlling everything? I mean, what differences does that make to you? And maybe it didn't in your individual committees. >> Hon. Lamar Smith: Well, on a couple of levels, one, you'd like to think that, with a more open process, you're going to end up with a better product, and better legislation. But when it comes to major pieces of legislation, it's really the party leaders that are going to determine what goes to the House floor. ^M00:39:50 If you think of a tax bill, if you think of a trade bill, if you think of a healthcare bill, or in the future, if you think of an immigration bill, those are going to be pretty much determined by the party leadership negotiating with the other party leadership. But on the whole, I've found that committee chairs are given a great deal of flexibility, and a lot of freedom to bring up legislation that they want to, to have hearings that they want to. So there's -- it's a combination of leadership in the House and the Senate, and committee chairs, but it really depends on how major the legislation is. I think that most -- the more important legislation, the more major it is, the more likely the leadership is going to get involved. >> Frances Lee: Well, it -- when we have fewer votes on the floor, when the votes that occur are more managed -- so, you know, very little legislation comes up under an open rule today. Those used to be much more routine. That means that there's been more consideration taken into how -- how is this vote going to play out? What will it -- how will it portray us vis-a-vis the opposing party? So this is incidentally one of the reasons for the rise of partisan conflict, is that votes that get -- votes that occur are more likely to show the parties in opposition to one another, and less likely to show the parties internally divided, because they've been pre-screened. This is happening in both the House and the Senate. In the Senate, this happens through the heavier-handed use of filling the amendment tree that the Senate Majority Leader deploys, but the upshot of these changes is that we see less internal party divisions on the floor than actually exist in the party, that those are -- that there's less public display of internal frictions within the party than there used to be. I mean, if we go back to, you know, the 1960s, Democrats -- Democrats, the majority party Democrats, didn't even meet in caucus with any degree of frequency. They'd meet at the beginning of the Congress, and they would organize the Congress. Then they wouldn't even meet. So they're not -- parties are not working -- are working together much more behind-the-scenes today. And so, you see less of the intra-party divisions than we used to see. But they are not -- they have not disappeared. There's not the deep ideological divides, but there's still a lot of complexity within the parties. And so, it's less open to public view. >> John Haskell: You know, one thing I've noticed in the media is there's all these stories about newer members, freshman members being frustrated. I wonder -- I wonder if that's a new development [laughter]. >> Hon. Lamar Smith: Talk about a -- >> John Haskell: Is that the same old story? >> Hon. Lamar Smith: -- talk about a slow pitch over home base. Yeah, no, no, that hasn't changed at all, unfortunately, with the media, and as we've already mentioned, the media seems to fixate on conflict and partisanship. The most interesting thing I saw recently -- I just saw an hour or so ago a new Rasmussen poll on the media, and this is astounding -- that they announced today that 69% of independent voters are angry with the media, and over 60% of all voters are angry with the media. They're not angry with the media because the media are objective, or pointing out the occasional good story. It's the other way around. So maybe the media will get the message, based upon popular sentiment, that there are other stories to be told, other than just partisanship, and other than just conflict, and to the extent those stories can be told, I guess -- I think the American people will have a more accurate view of Congress. And I think the American people will be more supportive of what we do. >> John Haskell: So a last observation that I want you guys to comment on before we move to questions from the audience is that, you know, Mr. Smith, when you were talking about how Congress is ugly. And that's how, you know, the sausage is made, you know, the sausage factory, it -- for some reason, it reminded me -- I think it might be a Mark Twain quote, where he said that Wagner's music is better than it sounds, you know, and the idea that maybe -- maybe Congress just is ugly, you know, in its processes. But maybe the results, you know -- >> Hon. Lamar Smith: That's true. >> John Haskell: -- it's sort of -- that hasn't changed -- >> Hon. Lamar Smith: That's true. >> John Haskell: -- whether it's good music or not is kind of in the eye of the beholder, right? >> Hon. Lamar Smith: There's another good Mark Twain quote that all members of Congress should adopt, and it is -- he was talking about in the book -- whether it's "Pudd'nhead Wilson" or whether it was "Tom Sawyer." But Twain is quoted as saying about a politician, "There was things that he stretched, but mainly he told the truth [laughter]." And so, there was -- it was along those lines. By the way, just -- I don't know what party she would run in, but I would sure like to see Professor Lee run for Congress. She'd be the most knowledgeable one voting and running if she were [laughter]. >> John Haskell: Well, I think she lives in the District of Columbia. She wouldn't have to vote, so there you go. >> Hon. Lamar Smith: And I don't want to ask her about her Princeton precinct, so [laughter] -- >> John Haskell: Yeah. So let's move to some questions, and be sure to wait until you get the microphone. This gentleman's first right here. You got a microphone coming right at you. >> Thank you. It's been mentioned that filibuster seems to prevent a lot of bills getting to the Senate, but the Senate Majority Leader seems to also be able to prevent a whole lot of things coming through. Now, the House -- Speaker of the House is defined in the Constitution. Senate Majority Leader is not mentioned at all. I'm wondering -- where did it come from? Where did he get all this power, and what would it take to change it? >> Hon. Lamar Smith: -- you want to start? >> John Haskell: Little history lesson here, Frances, or -- >> Frances Lee: Well, it's true that the Senate Majority Leader is not a constitutional office. In fact, it's one that has developed over time, 20th-century development. But you have to -- to understand why the leader has the power he has, you have to look to the rank and file, that they delegate that power, that if the -- the Majority Leader of the House -- of the Senate would not have the power that he wields if he did not command the support of his party. That there is a willingness to accept leadership in the Senate -- in the House, as well. The members need some predictability in the schedule, and they know that somebody has to manage the floor. And so, they defer. They understand that the price of that deference is that there are a lot of things that they might want to accomplish that they're not going to be able to accomplish. But somebody needs to manage the Senate floor, and so, they turn to the Senate leader to do that. And he does so in a way that takes into account the needs -- the political needs of the party he leads. And so, the issues that are highly divisive within the majority party are issues that the Senate Majority Leader would prefer not to bring up. >> John Haskell: -- and you actually had to cast those votes. I mean, you had to decide that you wanted Boehner to be on the floor, or Ryan, or Hassert, et cetera, back to Gingrich, to be the Republican choice for Speaker, right? So that's -- >> Hon. Lamar Smith: That is right. >> John Haskell: You had a vote. >> Hon. Lamar Smith: And also, there are rules. There are rules in the Senate, rules in the House, and those are just as powerful as words in the Constitution, because that's what they live by, and vote by, and enact by. But -- and you're right, John. There's a process by which you decide what goes to the floor, and that's under control of the Speaker, and in the Senate, the Majority Leader. And if they had that power, they're going to exercise it, and that's going to determine what -- and -- what gets done. The other thing is, the Senate takes a lot more time, often, than in the House to consider legislation. They'll spend a whole week on a major bill. We'll do it in two days in the House. And so, there's a time factor, as well. How many bills do we actually have time to physically consider? And that's more of a factor in the Senate than in the House. We're -- our rules are a little bit more constraining, and strictly enforced, and in the Senate, it's a little bit -- a little bit more freewheeling, and a little bit more informal, and witness the filibuster, for example. So I know it's frustrating, and sometimes, you may not want the Majority Leader or the Speaker to have the power they do, but that really is sort of baked into the system. >> John Haskell: That was very diplomatic for a House -- a former House member. >> Hon. Lamar Smith: I'm trying to restrain myself [laughter]. >> John Haskell: What -- somebody have a question? Back there, Giselle [assumed spelling]. >> Thank you for a wonderful talk, and wonderful comments, and -- >> John Haskell: Andrew [assumed spelling], could you move that mike up to your -- >> -- sure. Yeah, I've got a question for Professor Lee. I was wondering if your major thesis has changed or adapted at all when we're thinking about foreign policy. So incentives for bipartisanship -- I wondered if that changes at all when you're thinking about foreign policy. Thanks. >> John Haskell: -- that's a great question. >> Frances Lee: Yeah, it is a great question. The notion that politics stops at the water's edge has always been observed more in the breach [laughter] than in practice. The Cold War era did entail a fair degree of bipartisan consensus about the aims of U.S. foreign policy. So we could point to that period as unusually bipartisan, at least in the big picture, but -- and then, when there was divisiveness about foreign policy, it didn't break down on party lines. So the Vietnam War, for example -- highly controversial, but it was not controversial -- it divided both parties. It was not controversial along straight party lines. ^M00:49:58 So -- but we -- if we extend our view beyond the Cold War era, we can see that foreign policy has historically been very controversial in party terms. In fact, the stance of the U.S. national government vis-a-vis France and England was, you know, key to the formation of the party system at the very beginning. So I wouldn't say that foreign policy is, you know, outside of party politics as a general rule throughout U.S. history. >> Hon. Lamar Smith: I might just add, too, that foreign policy is one of those rare areas where the president under the Constitution is given broad powers, unlike maybe some other areas, or some other topics. It's also not, I don't think, particularly well-known that Congress, under the Constitution, is given broad responsibility for immigration. And so, you do have little pockets of difference when it comes to different issues. >> John Haskell: Right over here. Go on. >> Certain aspect of congressional thing -- my understanding is that earmarking is considerably less now than it was in the past, and I was -- I've been told that it was interpreted that earmarking was sort of the lubricant that caused legislation to be accomplished. Because then, there was a real champion that could go out. Do you have any comment on that in your -- because you've experienced both sides, I think -- >> Hon. Lamar Smith: On the earmarks? >> John Haskell: Yeah, why don't you speak to that first? >> Hon. Lamar Smith: Okay, and then -- okay. On the earmarks -- everybody may know earmarks are when specific amounts are -- specific funds are targeted or designated for a specific purpose, and we used to have, years ago -- I think not so much now, but we used to have what we'd call Christmas tree bills. And people would add all these earmarks to it, and the leaders oftentimes added earmarks, in effect -- hesitate to use the word "buy votes," but to encourage votes. Which is to say, if you had an earmark for a member that was going to help something in his district, it was less likely that he would vote against the legislation, or she would vote against the legislation. And so, a lot of people thought it served a good purpose. It sort of massaged the process, put oil on the creaky wheel, and helped the legislative -- legislature move forward. That said, there are very few earmarks now. They were banned a number of years ago, and some people think that we've had negative results, that it's been harder to pass legislation without the earmarks. My own feeling real quickly is there are good earmarks and bad earmarks. The bad earmarks were the funds that were designated in the dark of night without any public debate, and nobody knew about them until the bill was read after it had already been enacted. The good earmarks, to me, would be earmarks that served a public service, or did some public good, that were announced weeks in advance, and have open debate and transparency about them, and that were requested by public officials back home, and not instigated -- initiated by members of Congress. So I think sometimes we -- our reform speaks too broadly, and it would've been better to have had good earmarks and bad earmarks. But instead, we just said no earmarks. >> John Haskell: What's the political science take on this, Frances? >> Frances Lee: Well, I can say that you -- in the interviews that I've done with members, former members, staff, former staff, that the topic of earmarks comes up a lot, that people do see that as having had an effect on the ability to do the kind of wheeling and dealing that's part of the legislative process. It took away a tool for building consensus in the legislature. That's -- I've heard that a lot. Political science has not been able to bear that out with data analysis, where we're able to show that the earmark ban has had a measurable effect on bipartisanship or on legislating. I would say I see it as -- as a -- I see two sides of the issue. Now, on the one hand, earmarking is -- that's Congress's power. I mean, Congress represents the public. We have geographic districts. Why should members of Congress not have the power to designate projects in particular areas, and allow the executive branch to make all of those decisions? So I see at as part of Congress's power of the purse. On the other hand, administratively, it was always -- it's quite challenging for members, when you have earmarks, when earmarks are a possibility. Then you have to meet with all the groups who want to come in and ask for an earmark. And then you'd have to make decisions among them, and for every earmark you manage to get through, you make -- you disappoint others whose earmarks you were not able to deliver on. So there are multiple sides to the issue, but, you know, I think it's not an issue where I'd feel comfortable saying, you know, in an outright way, "Well, we know that it's made a -- had a detrimental effect on the legislative process." We don't. We don't know that. In fact, there are some reasons to think it's helpful to the -- it's efficient. It produces some efficiency in the legislative process not to work at that granular detail. So -- >> John Haskell: But there is the irony that it was a Republican Congress that did the reform to make it difficult or impossible to have traditional earmarks, and they -- and that's effectively ceded power to a Democratic president at that time. That was done when Obama was president. >> Hon. Lamar Smith: That's right. And -- >> John Haskell: So that -- you know, that was -- position, but -- gave up power, which is interesting. >> Frances Lee: -- there's also a story over time where earmarking had incrementally grown, that there were more and more earmarks included in legislation, so that the practice gotten a little out of hand. And there were -- you know, it was impetus in Congress to sort of try to rein that in. So that's also -- there's also a time trend story about the practice of earmarking. >> Hon. Lamar Smith: -- yeah. >> John Haskell: Right in the middle here, Andrew. >> Congressman Smith, can you speak to the role that the constituents, or the electorate, plays in this discussion about bipartisanship, and effectiveness, and passing legislation? And as well, maybe or maybe not, how your tenure in Congress, toward the beginning or the end -- the role the constituents may have changed or evolved in this process, on finding the bipartisan compromise? >> John Haskell: So this is one of these people who've made you smarter than you otherwise would be, right? >> Hon. Lamar Smith: Yes, and Curtis [assumed spelling] was also legislative director in the office, and Curtis, that's a much tougher question than I was expecting to get [laughter]. And I'm not sure I totally understood it. You're talking about constituents, and what -- >> Yeah, so the role -- in part of this discussion, one major role in terms of being policymakers and lawmakers is dealing with the electorate, and the constituents. >> Hon. Lamar Smith: -- to reflect your constituents, and try to do with -- yeah. >> Could you speak maybe how that plays into -- >> Hon. Lamar Smith: Oh, that's -- you know, and that is a point we haven't even mentioned today. You know, hopefully, a representative does represent their constituents, and you're right. In regard to earmarks, I was thinking while we were talking a while ago -- it was constituents who drove my earmarking years ago money for a dam back in New Braunfels, Texas, or for a senior citizen center out in the hill country, or for a library in another town. And those were all worthy projects, but they were driven by constituents. And we also might defend other members of Congress who feel differently than I do -- we all try to represent our districts, and the districts are all diverse. Some of us are representing inner city, some of us representing rural areas. Sometimes, it's a combination. We have an incredibly diverse country, and so, to the extent that you see diverse views represented on the House or Senate floor, it is oftentimes members of the House, or senators simply reflecting the views of their constituents. Of course, that gets into another question on the political side. When you have so few swing districts today, and more solidly Republican or solid Democratic districts, then you have representatives maybe favoring a little bit more their constituents who are primary voters, the so-called base. And that might be pulling us apart, because it might make Republicans more conservative than they would be otherwise, and Democrats more liberal, depending on what's going on with the primary, and that's probably what they're worried about. But at base, I think -- and that's, I think, the point of the question -- is we all need to remember that we're there at the behest of, and there at the -- at the -- and we're thankful to our constituents for putting us into office. And they're the ones we have to represent. They're the ones we have to remember that we're working for. And every now and then, you'll come up with an issue that you might personally feel differently from your constituents, but that's one or two percent of the time. Hopefully, the reason you got elected is because you do represent your constituents, but all true reform starts with the people. It doesn't go top-down. It goes bottom-up, and those are the constituents that we're talking about, that we hope we're responsive to, and that we need to remember that we answer to, too. But we need to be infinitely grateful for the trust they've given us to represent them. >> Frances Lee: I just want to speak briefly to that point. I'm glad that that was added to the conversation, Congress's representative function. That, you know, when we are evaluating congressional productivity, we have to keep in mind the enormous diversity of the United States. And I think that the folks who are frustrated with congressional performance are often also people who are embedded in like-minded networks with their family, or their geographic area, and they fail to appreciate just how diverse the views are in the country. But when you get to Congress, and you have to deal with representatives from places that are totally unlike where you -- you know, where you're from, the district that you represent, and you have to try to find some path forward, this is challenging. You know, Congress is tasked with a very hard job, and I think that that's often not appreciated. Because people don't -- people, in their own personal experience, don't confront the range of disagreement that members of Congress have to confront when they want to move forward on legislation. >> John Haskell: I think these were excellent last comments from both of you, good ways to end, and I want to thank our two panelists. And you can continue the conversation. We hope you'll join us at a reception in the back. Thank you both very much. >> Hon. Lamar Smith: Okay, thank you, John. ^M01:00:25 [ Applause ]