Mild Voice of Reason

80 Pages·1997·17.294 MB·English

by  Joseph M. Bessette

Th< Univmit)' of Chicago l'r<ss. Chicago 00637
The University of Chicago l'r..s. LJd. London
0 1994 by The Universit)' of Chicago
All righu reserved. Publi•hcd 1994
Paperback cditi()ll 1997
Printed in 1M United Stat<> of An,.,ricl
02 01 00 99 98 97 2 3 •I ~
ISBN: 0.226-04~23·8 (doth)
ISBN: 0.226-~24·6 (paperback)
Librory of Congr<» Cat.>loging-in-Pubhauion Data
Bt>JCllC, Jo>cph M.
or
The mild ,·oice- fC'a.son : delibcrati,·e ckmocracy and American
national gO\'<mm<m I Jo.cph M. Bcu<uc.
p. em. - (American politiu and political econom)' Jeria)
lncludn bibliogr;~phical rcfcn:necs and index.
I. United Sones. Congr•••· 2. Lcgi!lation-United States.
~- Democracy-United State•. I. 1i0c. II. Sene>: Amcri<an
politi<J and political economy.
JKIOOI.847 1994
328.73'077-<lc20 93-~0669
CIP
® The paper u.sed in thi.s publk:uion m«U the minimum
roquircmcnu of the A me ricin National St.andard for lnfonnation
Scicn<CJ-Pcmtancncc of Paper for Printed Library Materials.
ANSI Z$9.48-1984.
CONTENTS
Preface xt
Introduction
2 The Creation of Deliberative Democracy in
the United States 6
3 Uelibcration, Democr.tcy, and Policymaking 40
4 Bargaining and Collective Decisions: The Limits
of Explanation 67
5 Interest, Ambition, and the Character of
Lawmakers 106
6 Deliberation and the Lawmaking Process 150
7 The President's Contribution to Congressional
Deliberations 182
8 Public Opinion and Democratic Statesmanship 212
Appendix: Case Studies of Congress:
Domestic Lebtislation. 1946-1970 247
Notes 251
Index 277
[T]he mild voice of reason, pleading the cause of
an enlarged and permanent interest, is but too
often drowned, before public bodies as well as
individuals, by the clamors of an impatient avid
ity for immediate and immoderate gain.
James Madison, Federalist no. 42
I n recent yean, many Americans and more than a few political scientists ha,..,
come to belie,•e that democradc deliberadon in Congreu-wherebyj udgrnenu
are made on the meriu of policies and renect the intc.rests and desires of
American dtiuns-is more myth than re:ality. In 1his major new interpretation of
American government, joseph M. BeiiiCtte argues that the institutional framework
created by the founding fathers continues to foster a gCM:mment that is both dem~
cratic and deliberath..,, He demonstrates not only the limitations of nondeliberati'"'
explanations for how Ia"~ are made but also the continued -'llllity ofg enuine rea
soning on the merits of public policy. Bessette also assesses the contribution of the
presidtncy to policy deliberation and addtases the proptr rtlationshlp of public
opinion to policymaldng.
'1'his ..o orlr. on Congreas and the policymaldng proceas returns modem political
anal)w 10 the lc:-..,1 of seriousneu and public. .p iritedn<"U of 1M F<tkraBsu. •
-Jarnts C..ascr, Uni...,rsity of Virgini:a
"(This book) will force many in the field to rethink their :assumptions about tht
ways mtmbers of Congress makt their dtcisloru. •
Mansbridge, NorthWtstern Uni,..,rsity
-~ane
"Bessette's boolr. iJ one of the moot interesting and important •oolumes written on
Congress in 10me time. It desenft 10 be read by all serious students oflegislative
politics, the presidency. and democratic thtory ... as well as those who would
endeavor to sen·e the ~public on the noor of the Congress itself."
-Gary 1.. Cregg II, <Anpu and IN Prailkn9
·[A) fascinating and thoughtful book. ... Bessette crafted thiJ book with an obvious
concern for the efficacy of the democratic state, and his ma.ny rich in•ights will be of
lasting value."
-E;Ieen 1.. McDonagh, Political St:Wu• Quortnly
Ja.epb M.. ae-ue is the Alice Tlo,..,ed Tuohy Associate Professor of Co\oemment at
Oaremont McKenna College.
ISBN
0-22b-0~~2~-b
Amcrian Politics and Politial ~my
A ~rics editrd by lknjamin L J'>&e
CIHAP TER SIX
Deliberation and the Lawmaking Process
[T]his House, in its Legislative capacity, must exercise its
reason; it must deliberate; for deliberation is implied in
legislation.
James Madison, 1796•
[O]bviously I bring a differem view [to Congress]. That
is what any congressman does. That is why we give
speed1es. That is why we are here.
Representative Ga.ry Franks, 1991•
As the last two chapters have demonstrated, any compre
hensive account of the functioning of Congress must include
both deliberation and nondeliberative activities or influences.
Others have described these two ways of making policy deci
sions as "problem solving" and "persuasion" versus "bargain
ing" and "politics";' as "analytical policy making" versus "the
play of power";• and as "discussion" versus "struggle."5 If we
adopt the term "political" to describe activities and considera
tions extraneous to the meritS of an issue (which is consistent
with common usage),6 then we would say that political in
fluences within Congress include such diverse activities as
"wheeling and dealing," favor trading, exercising political
muscle, pursuing private ambition, parliamentary maneuver
ing, bribery, etc. If we define bargaining broadly-so that
exercising political pressure becomes making side payments
then bargaining and the pursuit of reelection probably consti
tute most of the political, or nondeliberative, activities and
influences that affect policymaking in Congress. Writing about
politics generally, Hanna Pitkin described well the combina
tion of deliberation and nondeliberative activities and forces:
Politics abounds with issues on which men are
committed in a way that is not easily accessible to
rational argument, that shapes the perception of
argumentS, that may be unchanged throughout a
lifetime. It is a field where rationality is no guar-
150
of
Locus Deliberaticn 151
ant ee of agreement. Yet, at the same time, rational arguments
are sometimes relevant, and agreement can sometimes be
reached. Political life is not merely the making of arbitrary
choices, nor merely the resultant of bargaining between sepa
rate, private wants. It is always a combination of bargaining
and compromise where there are irresolute and conflicting
commitments, and common deliberation about public policy,
to which facts and rational arguments are relevant.7
This suggests the utility of analyzing congressional behavior in terms
of a deliberation-"politics" dichotomy. As table 3 illustrates, many of the
most important features of the legislative process in Congress are subject
to two distinct interpretations or explanations.
In addition to clarifying the differences between political and delib
erative explanations, this sketch iJiustrates how far a deliberative in
terpretation may reach in explaining the structure and procedures of
Congress. Such central features as the dominance of committees, the
role of the leadership and of subgroups within Congress, and the in
fluence of lobbyists and the executive branch may aU contribute to the
substamive consideration of public policy. The point is not that nonde
liberative factors or forces are unimportant, but rather that policymaking
within Congress is best understood as a complex mix of politics de
aiUI
liberation, of the "play of power" and the reasoned effort to promote
good policy. With this background we can turn to the key features of the
lawmaking process in Congress.
The Locus of Deliberation in the Modern Congress
To the nonmember and casual observer, Congress presents its delib
erative face most prominently in public debates on the floor of the House
of Representatives and the Senate. This is where legislative proposals are
advanced and defended, where the opposing sides present information
and arguments to support their positions, and where, ostensibly, mem
bers are persuaded of the meriL'I or deficiencies of legislative initiatives.
In form at least, floor debate represents the most public and official ex
pression of Congress's deliberative character, of its responsibility to rea
son about the merits of public policy.
In important respects, however, the substance does not match the
form. Indeed, one of the frequent disappointments of tourists to the
nation's capital is to sit in the gallery of the House or Senate chamber
and observe a handful of representatives or senators reading speeches in
or
Table . A Comparison of "Political" and Deliberative Explanations
3
the Congressional Process
Political Deliberative
Issue or
Explanation Explanation
Characteristic
To publicize issues in To elicit the informa
Function of committee
order to mobilize sup tion and arguments
hearings
port outside Congress necessary to make in
formed judgments
An implicit logroll Members defer to the
Committee dominance
across committees judgment of those who
in the legislative pro
have deliberated fully
cess (i.e., high success
on the pending issue
rate on the floor)
Merely "pro forma"; or Final opportunity to
Function of floor
only tactically signifi hear the strongest ar
debate
cant; or useful for en guments pro and con;
hancing standing with useful also as an infor
constitutents mation source regard
.-effare
ing the contents of
complex bills ;:~iM
InAuence of committee Control over resources Members of Congress .:.en! deba
tf
and party leaders and/or parliamentary defer to individuals of
ttH,Ju'e Ru
procedures enhances sound judgment;
limd 16. i
bargaining leaders persuade oth
opportuntttes ers through rational
argument
Role of subgroups,
Tactically advantageous Facilitates collective
such as state delega
for coordinating the ac reasoning about com
tions or ideological
tions of like-minded mon concerns
groups
legislators (e.g., maxi
mizing attendance on
key votes)
lnAuence of lobbyists
Ability to influence Source of highly rele
voters; source of cam vant information and
paign funds; employ arguments
ment opportunities for
retired legislators;
bribery
Influence of the execu
Possesses vast resources Uses its extensive in
tive branch
with which to bargain formation resources to
for support within persuade legislators of
Congress
the merits of its
proposals
Locus of Deliberation 15)
a nearly empty room. In the Senate it is not uncommon for important
bills to be "debated" with as few as three or four senators present. "We
get in here working hot and heavy i.n debate," Senator Ernest Hollings
of South Carolina complained. "and there is no one here to listen."8 In
the larger House, attendance is usually higher, but many of those who
attend seem more interested in conversing with colleagues, reading the
paper, or even napping than in attending or contributing to debate on
the floor.
If Congress's deliberative character depended crucially on what hap
pened on the Aoor of the House and Senate, one might be forced to
conclude that serious deliberation plays only a tangential or episodic role
in the business of fashioning the nation's laws. Yet given the number and
variety of issues that confront the modern Congress together with the
limited time available for Aoor debate, it is clear that most deliberation
111ust occur elsewhere than on the Aoor. Consider, for example, the Nixon
administration's Family Assistance Plan initiative, briefly discussed in
chapter 4. This long and complex legislative proposal would have re
placed the existing welfare program for families with dependent chil
dren (AFDC) with something like a guaranteed annual income. Assigned
six hours for general debate on the House floor (in accordance with a
rule issued by the House Rules Committee), it was debated on the after
noons of April 15 and 16, 1970. (Normally Aoor debate in the House
and Senate takes place in the afternoon, with the mornings officially re
served for committee meetings.) ll hardly needs arguing that a thorough
examination of the issues involved in the Family Assistance Plan would
require much more than six hours-which is already considerably longer
than the House norm of one or two hours for floor debate on many bills.
Indeed, by the time the bill had reached the House floor it had been the
subject of thirty-five hours of public hearings before the House Commit
tee on Ways and Means and of another seven weeks of executive sessions
of the committee. Whatever deliberation took place on the floor of the
House on the Family Assistance Plan on April 15 and 16, it was dwarfed
by the momhs of deliberation that preceded it.
It is obvious that a few hours of general debate on the floor of the
House or Senate cannot on most measures begin to provide the oppor
tunity for the searching analysis of issues that a full-fledged deliberative
process requires. The detailed analysis of information and arguments
that constitutes the core of the deliberative process must be concentrated
in earlier stages of the congressional policy process. A recent detailed
154 Deliberation and the Lawmaking Process
analysis of floor politics in the House and Senate concludes that although
floor discussion in the House and Senate does not "achieve the ideal
form of either debate or deliberation," this does not mean "that little
debate or deliberation takes place in Congress. To the contrary, debate
and deliberation occur frequently and everywhere."9
Formulating and Introducing Policy Initiatives
Although the formal legislative process starts with the introduction of
a bill in the House or Senate by a member of the respective body, the
actual deliberative process may begin weeks and months before, as some
combination of the members of Congress, their staff, executive branch
officials, interest group representatives, and outside experts fashion a
policy initiative. In some cases th.is formulation stage may occur entirely
outside Congress. The historical extreme was reached during the famous
"Hundred Days" of Franklin Roosevelt's first term, when eleven major
bills were drafted in the executive branch "and sent to Congress in se
quence." T hese received "less than forty hours of debate altogether in
the House and all [were] enacted within sixty days of their submission.
OnJy one major bill (a banking bill) originated within the Congress it
self." 10 Three decades later, after Lyndon johnson ascended to the presi
dency, Congress again exhibited an uncharacteristic willingness to accept
policy direction from the executive branch. The landmark Economic
Opportunity Act of I 964, for example, was
"legislated" almost entirely within the executive branch and,
indeed, virtually without prodding from congressional or
other "outside" clienteles. The draft bill that President John
son sent to Congress on March 16, 1964, was the product of
almost a year of discussions and negotiations among high
level administrators and economists. The process was culmi
nated by a barnstorming five weeks of work by a special task
11
force headed by [R. Sargent] Shriver.
Such extreme deference by Congress on policy matters is, however,
quite unusual. It is more common for the members of Congress to con
tribute directly to the formulation of policy proposals with the assistance
of personal or committee staff and perhaps interested outside parties.
This may involve a kind of mini-deliberative process: not a comprehen
sive canvass and assessment of diverse opinion on the matter at hand but
instead a more narrowly focused effort by a smaJI group of like-minded
individuals to fashion a legislative remedy to some social, economic, or