What Should Congress Be?

Former Representative Justin Amash’s critique of the House illuminates its failures to live up to democratic ideals––and casts the fight over its rules in a new light.

Olivier Douliery / AFP / Getty; The Atlantic
An image of a gavel

Representative Kevin McCarthy’s protracted fight to become speaker of the House last month raised a big, seldom-discussed question about American democracy: What sort of institution should the House of Representatives be? Should a partisan speaker control if or when a bill or amendment is introduced to advance the program of the coalition that vested the speaker with power? Should power reside in committee chairs, perhaps assigned by seniority, who develop subject-area expertise and command commensurate deference from their colleagues? Or should all 435 voting members (and thus their constituents) be on equal footing, regardless of party or seniority, such that all can introduce bills or propose amendments that succeed or fail based only on whether a given proposal commands a majority?

These rival visions of Congress have come into repeated conflict in American history. Yet formulating an opinion was hard with recent news coverage focused narrowly on the conflict between rival factions in the Republican Party and how their relative power might shape lawmaking. In that telling, the fight for the speakership pitted a moderate faction that cares more about governing against a “far right” bloc intent on disrupting its efforts at the expense of the country. “They think throwing snares and making Congress ungovernable is progress,” Peggy Noonan wrote in The Wall Street Journal. “It isn’t progress but nihilism.”

Once McCarthy was finally elected, on the 15th ballot, newspaper coverage emphasized “major concessions to right-wing holdouts,” as The New York Times described the result. “To see it play out … has left little doubt that Congress as an entity would struggle to carry out even its most basic duties in the coming two years, such as funding the government, including the military, or avoiding a catastrophic federal debt default,” Luke Broadwater wrote.

A speaker with too little power could fail to run a House functional enough to do its job. Perhaps that assessment of the immediate political stakes will prove accurate––a Republican faction has shut down the government and played default brinkmanship before. Regardless, some rule changes that the House Freedom Caucus was pushing, such as one that gives lawmakers at least 72 hours to study a bill before they must cast a vote for or against it, seem best evaluated by their overall effect on the legislative process, not by how they may or may not influence a single legislative result in a high-profile fight like the one over the debt ceiling.

The general case for taking the long view on House rules is more compelling still: A majority of Americans has disapproved of congressional job performance for two unbroken decades, regardless of which party has been in control. So in addition to noting who has power right now and how they might use it in the next few months, Americans should be asking bigger questions about what sort of House of Representatives would better represent us––and what specific rule changes are necessary to achieve it.

One former congressman, Justin Amash, distinguished himself during the fight over the speakership by focusing on reforms that he’d advocated while representing his Michigan district. Amash, 42, defies easy categorization. The son of a Palestinian-born father and a Syrian-born mother, he grew up in a Christian family in a suburb of Grand Rapids and earned undergraduate and law degrees from the University of Michigan. He was elected to the state legislature as a Republican in 2008 and successfully ran for Congress during the 2010 Tea Party movement. Once there, he founded the House Liberty Caucus, co-founded the Freedom Caucus, and distinguished himself by actually explaining his votes to his constituents––those paying attention came to know that Friedrich Hayek and Frédéric Bastiat informed his beliefs in limited government and individual liberty. Staying true to his principles, Amash opposed Donald Trump in 2016. He left the Freedom Caucus in June 2019, left the Republican Party to become an independent that July, and that December was the only non-Democrat in the House to vote in favor of both articles of impeachment against Trump.

Amash did not seek reelection in 2020.

The Amash critique of Congress begins with the understanding that, despite the way that recent speakers, including Pelosi and Ryan, have done the job, the speaker of the House is not the same thing as the House majority leader. “The speaker is an official for the entire House, for the entire institution,” Amash said during an interview on the Fifth Column podcast.

As he sees it, the speaker should ensure a smooth, equitable procedure for any representative to bring legislation to the floor or to amend legislation that’s under consideration via a careful process of thought and discussion. In this telling, good rules and deliberative procedures enforced by a competent speaker improve democracy as lawmakers contribute input, discover good outcomes, and conduct up-or-down votes on discrete, comprehensible questions that keep them accountable to voters.

“It’s not about putting your thumb on the scale,” Amash continued, because if the speaker instead functions as a high-ranking official working to advance the agenda of Republicans or Democrats, “you’ve now got this conflict of interest”: The speaker is in charge of the lawmaking process even as he or she is manipulating that same process to achieve a specific outcome. The rules no longer function to facilitate debate, or an improved bill text, or accountability––they are tweaked and reverse-engineered to serve one faction’s legislative agenda.

For example, after a bill is introduced, a speaker could allow amendments to be offered as part of a deliberate process to improve it. But since 2016, under both Paul Ryan and Nancy Pelosi, who bent the process to advance their respective agendas, “there have been no amendments freely offered from the House floor,” Amash complained. “Ryan’s term was the first time in history that you had an entire two-year term of Congress where there wasn’t an amendment not prescreened by the speaker offered from the floor. Then Pelosi did the same thing.”

The inability to bring bills or amendments to the House floor effectively made it impossible for legislators like Amash to represent their constituents as fully as could peers aligned with party leadership. Under a more open process, backbenchers would have a chance to introduce bills that leadership doesn’t consider a priority but that the whole body might feel public pressure to support––for example, while in Congress, Amash, a committed civil libertarian, specifically favored stand-alone votes on mass-surveillance programs rather than larger bills that included their reauthorization.

“Congress now routinely passes most major legislation in a multi-thousand-page omnibus bill, crafted in secret at the end of each year, with no time to read, in a nearly empty House chamber, with no floor amendments allowed,” Amash has tweeted. “This is oligarchy, not representation.” And backbenchers could use the amendment process, for better or worse, to improve a bill that ultimately passes; to show their constituents they tried to push for some change or other even though they knew their amendment would fail; or to embarrass the majority or poison a bill to prevent it from passing.

Intrigued by Amash’s critique, even as it went mostly ignored (and in one case mocked) in the press, I reached out to Amash, who didn’t respond to my requests for an interview, and to political scientists with expertise in congressional history. I found real enthusiasm for some aspects of it.

Professor David Mayhew is a retired Yale political scientist who still teaches. He specializes in U.S. legislative behavior, political parties, and policy making. His books include Party Loyalty Among Congressmen, America’s Congress, and Parties and Policies. “I say three cheers for Amash,” he emailed. “Making policy by way of multi-thousand-page bills that are confected at the last minute and that virtually nobody reads is horrible practice. A legislative body should be open and deliberative. It should take up single-topic measures one-by-one that members and the public can follow and understand. Open, time-consuming deliberation at both committee and floor levels, where all members, majority and minority, have a chance to make a pitch, is the way to go. Open up the roll calls. No proxy voting [where a member who expects to be absent for a vote gives another member permission to cast it]. Let cross-party coalitions form.”

Among the disagreements with Amash that I encountered: pushback on his account of how the House today compares with bygone versions of the institution. “Amash is correct in the general sense: It definitely has gotten tougher for individual backbench members to meaningfully participate in the deliberative policy process in the last several decades,” emailed Matt Glassman, a senior fellow at Georgetown University’s Government Affairs Institute and a former staffer of the Congressional Research Service, where his portfolio included congressional history and operations. As Glassman sees it, Amash overstates the degree to which recent speakers are historic outliers. “The House has never been a place where every voice was even close to equal; it has always been much, much more hierarchical than, say, the Senate,” he explained. “Power in the House has never really resided with the individual members.”

Joseph Cannon, who consolidated control over the institution at the beginning of the 20th century, is widely considered history’s most powerful speaker. “So much power had been centralized that Cannon was able to personally and unilaterally assign all the committee seats,” Glassman noted. Cannon also chaired and controlled the Committee on Rules and determined whether a representative would be “recognized” to speak––tools he used to thwart the legislative agenda of progressives like then-President Theodore Roosevelt, whose activist approach he regarded as dangerous to the republic. Progressives who favored a more open process bided their time for years until Saint Patrick’s Day 1910, when many Cannon allies were out in Washington at drunken celebrations, to revolt against him and dramatically decrease the speaker’s power. Going forward, more power would reside in the chairs of committees appointed by seniority. Later, the Southern Democrats who came to control many committees would exploit that process to stop majority-supported civil-rights legislation from reaching the floor––a reminder that no process is immune to abuses of power and bad outcomes.

Another momentous shift happened in 1995, when a new speaker of the House, Newt Gingrich, who favored cutting taxes and rescinding government regulations in an effort to stimulate the economy, began to consolidate power. Staff serving leadership grew while committee staff size stagnated or shrank. Most major bills were negotiated by leadership. Fewer floor amendments were allowed. And both Republicans and Democrats attacked the seniority system for power in committees.

Other Gingrich reforms included “imposing term limits on committee chairs and getting rid of proxy voting,” the Princeton history and public-affairs professor Julian E. Zelizer told me. “He also named committee chairs through his office rather than depending on the Republican Committee on Committees. The trajectory has generally continued to go in the direction of stronger speakers since that time.”

Why have politicians as different as Dennis Hastert, John Boehner, Pelosi, and Ryan maintained that paradigm? Joseph Postell, a politics professor at Hillsdale College, told me, “Amash and those who long for the old days think that power has become too centralized in Congress and individual members have become weak.” But Postell thinks that the opposite has happened. “It strains credulity to suggest that John Boehner and Paul Ryan were czars calling all of the shots in the House,” he said. “They were incredibly weak speakers, especially when one looks at the truly czarlike speakers a century ago.”

In Postell’s telling, the process in the House is closed to the minority party, and to minority factions in the majority party, not because that’s what leadership wants. Rather, it works this way because of today’s safer congressional districts, where primary challenges threaten incumbents more than general-election opponents do. Congresses where the balance of power is historically tight create incentives to grandstand, rack up partisan victories, and deny wins to the other side.

Citing the book Insecure Majorities by the Princeton political scientist Frances Lee, he added that “when this dynamic exists, majority parties will act as a cartel to close the process,” while leaders like Ryan and Pelosi “act as the agent of the party, not as the leader of it.” In this telling, the process was closed under Ryan and Pelosi because they lacked the power to hold their coalitions together in an open process. Postell predicts that the same House Republicans who opposed McCarthy by demanding more ability to introduce amendments “will be the first to complain when the amendment process is opened up and Democrats can modify legislation by peeling off a dozen moderate or vulnerable Republicans with strategic amendments.” There would then be pressure from more Republicans for McCarthy to be the sort of speaker who limits amendments in order to ensure that the majority coalition’s agenda passes.

John Aldrich, a political-science professor at Duke University, agreed with Amash that “the House should work as an open, accountable, deliberative body that welcomes the participation of every representative, regardless of party.” But he also believes, like Postell, that “no speaker will run the House that way until and unless the great majority of its members choose to have the speaker run the House that way.” As he understands the institution, “legislating by 435 individuals on the floor is just too complicated and messy, seemingly always bogged down and never able to act.” So there is always pressure for the members to give some of their power to the speaker or to chairs of committees to impose order on the chaos. “It is very hard to see how the speaker could be independent, or remain so for very long,” he wrote to me in an email, “without changing much more of the House to be nonpartisan or balanced bipartisan.”

At least one potential speaker has a track record in government that suggests he would try his damndest to remain independent. And Amash is eligible for the job despite having left Congress. The Constitution imposes no requirement that the speaker of the House be a member of the House. A majority of House members can vote for whomever they like for the role.

“I’d gladly serve as speaker of the House for one term to show people the kind of legislative body we can have if someone at the top actually cares about involving every representative in the work of legislating,” Amash tweeted before McCarthy was elected. To Democrats, “regardless of our policy differences, they can count on me to maintain a system that is fair and representative,” he promised. And “Republicans can proceed with the assurance that their majority will mean something under an Amash speakership,” he added. “Priority legislation that complies with the Constitution will get a vote; I won’t put my thumb on the scale with respect to policies. If they have the numbers, they win.”

But no one took him up on the offer.

Wouldn’t it have been fascinating to watch an Amash speakership unfold? I suspect that partisans would’ve hated it and that I would have loved it. I wonder how Amash would resolve the seeming tension between wanting to let all 435 members offer amendments to legislation and wanting members to vote on simple legislative proposals that the people back home can understand rather than complicated mash-ups of what ought to be distinct questions. And I wonder how quickly the House Freedom Caucus would have betrayed him as the Republican majority pressured him to do its bidding.

Of course, Amash is not likely to ever be speaker of the House, in part because he is not a partisan. Still, the big, earnest questions he asked about the institution were constructive and overdue for public consideration, and ought to inform our assessment of at least a few of the many rule changes that McCarthy was presented with and agreed to in order to secure his position.

In the new Congress, lawmakers will have at least 72 hours to review a bill before casting a floor vote; there are new efforts to make bills more transparent and simpler, requiring a statement of a single main topic; and “at the heart of the rules push by rank-and-file conservatives, including many in the Freedom Caucus, is a desire to shape a more inclusive legislative process that concentrates less power with leadership,” Politico reports. “To that end, they have secured promises from leaders that aren’t formally written down in the rules, such as allowing more amendments to be considered on the floor and more widely distributing committee positions.”

Other changes, such as new membership of the Rules Committee, may just portend another faction manipulating the process to advance its agenda, and that more democratic approach to amendments may or may not last. But so far, it seems to be having an effect, for better or worse. “The House opened up its amendment process for the first time in seven years on Thursday, and began debating on the floor more than 140 proposed changes to an oil-related bill,” Mychael Schnell reported last week in The Hill. A seemingly performative Marjorie Taylor Greene amendment suffered a massive bipartisan defeat. And “some Democrats had positive reviews of the modified open rule process, noting that it gives them the opportunity to have their amendments added into legislation.” The article goes on to quote Democratic Representative Rashida Tlaib, who declared, “If I get some amendments passed then I’m gonna like it a lot.”

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