BOOK REVIEW

The Broken Branch
by
Thomas E. Mann & Norman J. Ornstein

FUTURECASTS online magazine
www.futurecasts.com
Vol. 10, No. 5, 5/1/08

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The return of party partisanship:

 

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  Increasing partisanship and ideological sorting by party during the last three decades has transformed Congress from two deliberative bodies into partisan battlegrounds. In "The Broken Branch: How Congress is Failing America and How to Get It Back on Track," Thomas E. Mann and Norman J. Ornstein describe the deterioration in the legislative and oversight processes of Congress and advocate procedural reforms.
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Congress has become more like a parliamentary system, with disciplined political parties committed to support of or opposition to the president's agenda and the procedural suppression of minority input.

  The demise of civility and bipartisanship and increasing restrictions on the deliberative process during recent decades are deplored by the authors. The political parties have moved from left of center and right of center political organizations further to the ideological extremes. The majorities have become narrower and less secure. As a result, Congress has become more like a parliamentary system, with disciplined political parties committed to support of or opposition to the president's agenda and the procedural suppression of minority input.

  "In recent years a number of factors -- the two parties at parity and ideologically polarized, a populist attack on Congress that has weakened the institutional self-defenses, a more partisan press and interest group alignment, and an electoral environment making legislative activity subordinate to the interests of the permanent campaign -- have conspired to encourage a decline in congressional deliberation and a de facto delegation of authority and influence to the president."

The Speaker is a Constitutional officer for the whole House, and partisan involvement actively lobbying for votes undermines that role.

 

Closed rules votes in the House have increased from less than 10% under the Democratic 103rd Congress to more than 25% under the Republican 108th Congress.

  There have been numerous examples of partisan excess in the House. On one clear occasion, for the hotly contested drug benefit bill, the vote was kept open for hours while votes were lined up by "arm twisting" consisting of political bribes and threats of retaliation. This typically involves the offer or threat of withholding of large campaign contributions.
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  With electronic voting, such votes had almost always been confined to 15 minutes with rare digressions of just a few minutes extra. It is clearly ethically improper "for a member to offer or link support for the personal interests of another member as part of a quid pro quo to achieve a legislative goal," the authors point out. 

  • The Speaker has increasingly become an active partisan. The Speaker is a Constitutional officer for the whole House, and partisan involvement actively lobbying for votes undermines that role. Party whips and majority and minority leaders are supposed to play the partisan roles on the House floor, not the Speaker. This practice began with Democratic Speaker Jim Wright, who actively interfered with the president's conduct of foreign policy. Partisanship was pushed to new extremes by Republican Speakers since 1994.

  • Restrictions on debate and floor amendments and other procedural constraints are increasingly employed to eliminate minority input in deliberations and legislation. Closed rules votes in the House have increased from less than 10% under the Democratic 103rd Congress to more than 25% under the Republican 108th Congress.

  • Effective Congressional oversight disappears when the president and the congressional majorities are of the same party. There is serious weakening of the checks and balances of the system.

      This is often remedied by the electorate with loss of majority status in congressional elections. It happened in 1994 during the Clinton administration and in 2006 during the Bush (II) administration.

Use of the budget reconciliation process that operates under special procedures that bar the filibuster has been expanded by the majority along with other forms of "unorthodox lawmaking."

  The situation is nowhere near as bad as during the period prior to WW-I, the authors candidly admit. Slavery tore the country apart during its first seventy five years under the Constitution, and Speakers like Thomas Reed and Joseph Cannon ruled the roost in the later years. However, that was during or just after the 19th century, before the federal government played such a large role domestically and internationally. For the 21st century, much better is needed, they argue.
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  On the Senate side, the increased use of the filibuster as a means of imposing a 60 vote supermajority requirement for passage of legislation and approval of appointments has had noxious side effects. Use of the budget reconciliation process that operates under special procedures that bar the filibuster has been expanded by the majority along with other forms of "unorthodox lawmaking." This development undermines the use of the filibuster as an essential guarantee of minority influence on important legislation.
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The transformation of Congress:

 

 

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  Congress is the central repository of power under the Constitution, the authors point out. However, as James Madison pointed out, "because men are not angels," an extensive system of internal and external checks and balances constrains its activities and the activities of the other arms of government. A multiplicity of factions were encouraged and empowered, "requiring majorities to be built from coalitions of minorities through a process of accommodation and compromise."
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  However, practice quickly undermined political theory. The government was pulled and pushed in ways that could not be foreseen. The rise of political parties and the emotions of the slavery issue were the most powerful forces at work, but there were many others.
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  The presidency and the courts solidified their institutional roles. Senators and presidential electors became subject to popular elections, increasing their legitimacy and popular support. Loyalty to party vied with loyalty to the institution for predominance. Nevertheless, Congress retained its significance and influence at the center of national governance.
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  The development of the internal rules of Congressional procedure are traced by the authors from the early days when members jealously guarded their institutional prerogatives, deliberated on the Chamber floors, and only formed committees for temporary specific purposes. However, this was quickly altered by the rise of party influence and the establishment of standing committees. These were essential for the efficient and reliable achievement of increasingly sophisticated legislative agendas. Soon, power was devolved to the committee chairs.

  "By the early 1820s, both the House and Senate were developing an institutional capacity to process legislation and oversee the executive based on the specialized knowledge of its members. Congress strengthened its policy making position by decentralizing authority to standing committees, whose expertise and institutional memory helped cope with an expanding workload and provided the information essential to evaluate requests from the executive."

  Towards the end of the 19th century, Speaker Thomas Reed pushed through procedural rules that eliminated dilatory motions and disappearing quorums and other methods used by minorities to frustrate majority legislation in the House. The Speaker controlled membership on the Rules Committee that controlled the chamber's agenda and regulated obstruction on the floor.
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  Because the Vice President is president of the Senate
under the Constitution, it was the party leaders who played the dominant role in organizing the Senate. They set the agenda, resolved caucus differences, "and enforced a remarkable degree of discipline on the Senate floor." However, before the Civil War, there were no restrictions on debate. There was a lighter workload and the greater informality and individual prerogative made possible by the Senate's much smaller size. The Senate gained a reputation for leadership and brilliance in debate on the contentious issues of the day.
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  After the Civil War, this changed. Filibusters increased in frequency and Senate proceedings were more frequently obstructed by determined minorities. The workload greatly expanded, and public statesmen were increasingly displaced by professional politicians.
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The supermajority requirement for cloture - originally set at two thirds of the members present and voting - was enough to sustain the filibuster as a powerful tool for minority resistance - as it remains today with a 60% supermajority requirement.

  During the progressive era at the beginning of the 20th century, there was a revolt against centralization of power in the House. The Speaker was removed from the Rules Committee and his appointment powers were reduced by a seniority system for committee chairs. By the 1920s, the agenda was set by an independent Rules Committee.
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  A Constitutional amendment in 1913 that provided for direct popular election of Senators increased individualism and resistance to leadership control in the Senate. Party leaders became more like managers of party efforts than leaders of Senate activities. In 1917, a cloture rule for terminating debate was passed in the Senate. However, the supermajority requirement for cloture - originally set at two thirds of the members present and voting - was enough to sustain the filibuster as a powerful tool for minority resistance - as it remains today with a 60% supermajority requirement.
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Checks and balances:

  Competition with the presidency for influence over national policy has waxed and waned from the beginning.
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  Congress dominated policymaking through most of the 19th century. Even during strong administrations under the Federalists, the Jacksonians and Lincoln, Congress actively maintained its prerogatives.
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  The rise of the modern presidency, from Theodore Roosevelt to the present, had many causes. The authors mention the "bully pulpit" that has continuously been amplified by modern communications technology, the complexity of the administrative state, the rising demands of the national security state, and public expectations for an effective economic policy.
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Congress had "retained a central position in the American constitutional system" based on its direct connection to the people and its impressive array of constitutional powers.

  Congressional efforts to dominate the judiciary were quickly ended by public support for judicial independence. Now, Congressional influence on the judiciary is generally limited to the constitutional appointment process and normal legislative reactions to decisions that are based on common or statutory law. The judiciary remains largely independent within its sphere, is dominant on issues it resolves on a constitutional basis, but maintains a careful regard for strongly held public opinion that it has only on occasion ignored. (The authors do not delve into modern questions of constitutional jurisprudence.)
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  The authors sum up the results of these changes, leading to the 1946 Legislative Reorganization Act and the Congress as they knew it when they began their careers in Washington in 1969. Basically, much had developed - for better or worse - that had not been foreseen by the founding fathers, but Congress had "retained a central position in the American constitutional system" based on its direct connection to the people and its impressive array of constitutional powers.
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Modern developments:

  The authors initially joined Congressional staffs of liberal Democratic members of the House. These liberal legislators were frustrated by the tight control then exercised by conservative southern Democrats who dominated committee chairs by dint of seniority. The powers of committee chairs in those days was almost total. The Vietnam War, civil rights and welfare state issues provided a perfervid political environment.
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The Speaker, now controlled for Democrats by liberals, received enlarged powers over committee assignments and agendas.

 

Congress limited a president's warmaking powers and his ability to affect the budget by impoundment of appropriated and allocated funds.

  The growth of the liberal majority in the Democratic caucus slowly enabled the liberals to challenge the conservative committee chairs. The liberals established the right to vote on committee chairmanships and diluted the influence of committee chairs on subcommittee appointments and staffing. Liberal non-southern Democrats quickly gained 16 subcommittee chairmanships.
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  The 1970 Legislative Reorganization Act was pushed through by a coalition of dissident liberal Democrats and frustrated Republicans with extensive media and public support. It required recorded votes on floor amendments, guaranteed time for debate on amendments, open committee meetings, and an end to committee chair monopoly authority over the committee agenda. An electronic voting system was installed that shortened the time needed for roll call voting from about 45 minutes to about 15 minutes and sometimes much less.
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  In 1973, as Republicans gained in the South, the liberals increased their majority of a reduced House majority. The liberals passed a Subcommittee Bill of Rights. This largely freed subcommittees from domination by their committee chairs and greatly reduced committee chair control over appointments. The Speaker, now controlled for Democrats by liberals, received enlarged powers over committee assignments and agendas.
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  A weakened presidency during and after the Watergate scandal gave Congress an opportunity to undermine presidential powers. The 1973 War Powers Resolution and the Budget and Impoundment Control Act were passed over Nixon vetoes. Congress limited a president's warmaking powers and his ability to affect the budget by impoundment of appropriated and allocated funds.
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Liberal reforms facilitated Newt Gingrich's partisan attacks on the Democratic domination of the House. As the competition for control heated up, partisan rancor began to displace the civility and cozy relationship between the majority and minority that had existed during the long years when Democratic party dominance was beyond challenge.

 

The Democrats responded by strengthening rules that would enhance the ability of their slim majority to control of the House.

  The post-Watergate liberal Congress elected in the 1974 midterm election pushed a further wave of reforms, especially of the powerful Ways and Means and Appropriations committees. The liberals grabbed full control of the Democratic caucus. They deprived three senior members of their committee chairs and replaced them with relatively junior liberal members. A new ethics code was adopted. Working through the Democratic caucus, they brought up legislative amendments attacking the oil depletion tax allowance and defunding military aid to South Vietnam, dooming that nation.
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  However, despite a two-to-one Democratic majority, the old conservative coalition of conservative Republicans and "Boll Weevil" southern Democrats still had enough strength after the 1976 election to block much of the legislative agenda of President Jimmy Carter. When Ronald Reagan won in 1980 along with Republican gains in the House and control of the Senate, these liberal reforms facilitated Newt Gingrich's partisan attacks on the Democratic domination of the House. As the competition for control heated up, partisan rancor began to displace the civility and cozy relationship between the majority and minority that had existed during the long years when Democratic party dominance was beyond challenge.
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  The democratization of House rules ended. The Democrats responded by strengthening rules that would enhance the ability of their slim majority to control of the House.  A contemporary Atlantic Monthly article written by Orenstein is reprinted in the book vividly portraying the increasing partisan rancor.
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  The Democrats recouped much of their losses by the last two years of the Reagan presidency. Jim Wright used his position and enhanced powers as House Speaker to push through considerable liberal legislation and to actively oppose Reagan's successful efforts to bleed the Soviet Union financially and speed the end of the Cold War. Wright squelched Republican efforts to influence important legislation.
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  Ethics charges became a weapon of choice in the post-Watergate political environment of the 1980s. Numerous legislators - ultimately including Speaker Wright and Democratic Whip Tony Coelho - were forced to resign before the decade was out. As a result of the 1990 midterm election, a remarkable 110 freshmen entered the House. Scandals continued into the 1994 midterm election.
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Filibusters and holds continued to stymie legislation.

 

The Senate became "more open, more fluid, more decentralized, and more democratized -- and more polarized."

 

Attacks on appointees were personal rather than on the basis of qualifications, issue positions or philosophy.

  The Senate also reflected the polarization of the parties and the rise of partisan conflict, but to a somewhat lesser extent. Southern conservatives shifted to the Republican party and Northeastern moderates and liberals shifted to the Democratic party.
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  In 1975, as the use of the filibuster mushroomed, the cloture rule was changed to 60 Senate votes regardless of turnout. However, filibusters and "holds" based on the threat of filibusters continued to stymie legislation. Reform efforts achieved little. "The underlying pressure to spread power and resources continued largely unabated." The Senate became "more open, more fluid, more decentralized, and more democratized -- and more polarized." With this increased democratization and individual power, it became harder to get things done.
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  Partisan rancor was reflected in the approval process for presidential nominees. The Robert Bork and Clarence Thomas Supreme Court nominations - the former blocked and the latter ultimately approved -- and the rejection of Sen. John Tower for Secretary of Defense, were especially bitter battles. The attacks were personal rather than on the basis of qualifications, issue positions or philosophy.
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The Democrats reacted to Gingrich radicalism with closed rules, abuse by chairmen of proxy voting authority, and majority arrogance that served to unify Republican opposition behind Gingrich.

  During the first two years of the Clinton presidency, while the Democrats controlled both Congressional chambers, the authors participated in reform efforts. However, these efforts came to naught.
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  The Democrats reacted to Gingrich radicalism with closed rules, abuse by chairmen of proxy voting authority, and majority arrogance that served to unify Republican opposition behind Gingrich. A fumbling Clinton administration, scandals, a Democratic legislature that failed to pass several key pieces of legislation despite substantial majorities, criticism of the "Hillary Care" health care initiative, and the Gingrich success in nationalizing the midterm election, resulted in Republican House and Senate victories in the 1994 midterm election.
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  The 1994 Republican sweep crafted by Newt Gingrich resulted in a short period when the House did indeed attempt to drive the national agenda. Fulfilling their campaign pledge, the Republicans brought all ten planks in their "Contract with America" up for floor vote within 100 days and passed all but the term limits Constitutional amendment which required a 2/3rds supermajority.
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  However, most of these measures foundered in the Senate where they met opposition from a strong Democratic minority and a politically astute president. By August, only three contract items had been passed. In the subsequent battle over the budget, President Clinton won hands down, assuring his own reelection and leading to Gingrich's ultimate defeat.
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Gingrich transformed the House from a committee based to a party based legislature. He controlled committee appointments and staffing, and set their agendas and schedules. Important bills were drafted by special leadership task forces rather than by the committees.

 

Any Senator, even when acting anonymously, could obstruct proceedings by means of a "hold."

  As Speaker, Gingrich had centralized control of the House. He transformed it from a committee based to a party based legislature. He controlled committee appointments and staffing, and set their agendas and schedules. Important bills were drafted by special leadership task forces rather than by the committees. The Republicans in the House were using the same techniques as had the Democrats to push through their legislation and eliminate minority input or influence.

  "[Adherence] to regular order -- the rules, precedents, and norms guaranteeing opportunities for genuine debate and deliberation in the House -- was trumped by the overriding desire of the new majority to produce legislative results. - - - [By 1998, Republican leaders had] embraced processes that set the stage for the virtual collapse of genuine deliberation in the House and fomented bitter and destructive relations between the two parties."

  A closely divided Senate became increasingly obstructed by filibusters and threats of filibusters. Any Senator, even when acting anonymously, could obstruct proceedings by means of a "hold" - a threat of filibuster. Only budget and other "fast track" rules legislation was immune.
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  The mutual interest in getting reelected and in retaining public support thereafter ultimately induced the Republican Congress to negotiate and pass a wide variety of important legislation during the Clinton administration. Prosperous times brought rising revenues and budget impulses that reduced partisan rancor. Where compromise and accommodation were not possible, Clinton increasingly relied on executive orders and administrative actions.
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  The record on judicial appointments, scandals and impeachment proceedings during the Clinton administration is briefly reviewed by the authors. Impeachment and investigations were partisan spectacles that a disgusted public refused to support.

   "The failure of the House to pull back from the [impeachment] precipice spoke volumes about the bitter partisan polarization that had come to shape life in the Washington community. Impeachment was just another weapon in the partisan wars, a further escalation of the criminalization of political differences."

  When George Bush (II) became president, he ignored the slimness of his margin of victory in the electoral college and his loss in the popular vote. He boldly pushed his conservative agenda through a narrowly divided Congress where Republicans narrowly controlled the House and Democrats ultimately had a one vote edge in the Senate.
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  His tax cut proposals required remarkable unity among Republican House members and the fending off of almost all Democratic input. In the Senate, some Democratic Senators from states that Bush had carried felt vulnerable and provided the margin of victory, but some compromise did prove essential.
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  The authors note that it was clearly the president who dominated the tax cut agenda. Congress had rushed it through with remarkably little deliberation or input. The president also dominated the education reform agenda. After the September 11, 2001 terrorist attacks, the president naturally dominated the national defense agenda, including the Patriot Act and authorization for the attacks on Afghanistan and Iraq. The establishment of a Homeland Security Department was especially contentious, however, because of administration demands for total flexibility over personnel actions.
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"The institutional rivalry designed by the framers gave way to a relationship in which Congress assumed a position subordinate to the executive. Party trumped institution."

  Bush (II) upped the stakes in the 2002 midterm elections by campaigning vigorously for Republican candidates. As a result, Republicans regained control of the Senate and gained seats in the House in a midterm election that almost always goes against the party holding the presidency. The Bush (II) Homeland Security bill and almost all his judicial appointments were quickly approved. However, Democratic partisan rancor - especially in the Senate - had been pushed to new heights by the president's campaign tactics.

  "The partisan and executive-centered approach to governance embraced unequivocally by Bush and Cheney shaped the way in which the Republican majority in Congress defined its role and went about its work. The institutional rivalry designed by the framers gave way to a relationship in which Congress assumed a position subordinate to the executive. Party trumped institution. The president set the agenda of Congress and made clear he expected Republican leaders in Congress -- his 'lieutenants' -- to deliver."

  Republican leaders in both chambers thus energetically pursued the president's agenda to the extent of subordinating the institutional interests of the Congress, the authors assert.
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  The elimination of the legislature's deliberative processes resulted, for example, in a 2005 bankruptcy law reform that the authors portray as seriously flawed. The nonsensical rigidity of the law's procedural requirements was quickly revealed by hurricanes Katrina and Rita which left tens of thousands destitute and without the documentation required by the new law.

  "The bankruptcy bill is in some ways a special case, but it highlights a pattern -- the eschewal of the regular order, the abandonment of deliberation, the core value that the political ends justify the legislative means, the lack of concern about legislative craftsmanship -- that results in the production of poor laws and flawed policy."

Institutional decline:

 

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  The growth of anti-government attitudes brought an end to Democratic control of the House and established Newt Gingrich as Speaker. Member attitudes towards Congress as an institution visibly reflected the general public attitude. Pride and support for institutional prerogatives was replaced by a skepticism of government and even of the legislative chambers in which new members served.
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  Interest has thus collapsed in the procedural reforms that these two authors have worked on for several decades. Even the restructuring of committees to oversee new homeland defense and intelligence arrangements was haphazard and marred by turf wars waged by existing committees.
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There was no serious oversight of the monstrous bureaucracy of the new Homeland Security Department despite glaring problems. These problems were revealed in part by the bungled responses to hurricanes Katrina and Rita and to a mad cow disease scare.

  Oversight of executive branch activities - to make sure that "the laws are faithfully executed without bias or malfeasance" - is a primary function of Congress and its committees. Unfortunately, in recent years, oversight of policy declined in lieu of "a near-obsession with investigation of scandal and allegations of scandal." When Bush (II) became president, almost all oversight disappeared.
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  There was no serious oversight of the monstrous bureaucracy of the new Homeland Security Department despite glaring problems. These problems were revealed in part by the bungled responses to hurricanes Katrina and Rita and to a mad cow disease scare. Fortunately, there has been no real terrorist attack since 9/11.

  After more than seven and a half years and strenuous al Qaeda efforts to strike the U.S., the lack of any further terrorist attacks can no longer be viewed as mere happenstance. The administration must be doing something right. Of course, eventually there will be another attack. The U.S. is simply too vulnerable a target to be fully protected.

  The authors provide a marvelous example of Congress in action and, unwittingly, demonstrate the reason why Congress MUST take a subordinate roll in such vital complex and sensitive matters as national defense and foreign policy. In Congress, all too often, narrow political imperatives trump the national interest.

   "The problem was perversely compounded by the incessant demands of a gaggle of committees and subcommittees -- as many as eighty-eight of them -- to grab a piece of homeland security jurisdiction and political cachet and cover by demanding that the DHS Secretary or other top official testify before them. The top management of the agency had to spend huge chunks of time at Congress but almost no time participating in a serious examination of the department's functions and performance."

The authors are especially critical of the lack of penetrating questioning of the administration's conduct of the war, national defense and foreign policy, despite obvious weaknesses that might have been earlier remedied if subjected to Congressional examination.

  Oversight means criticism of performance, something that the Republican majority refused to do to its own administration. The authors are especially critical of the lack of penetrating questioning of the administration's conduct of the war, national defense and foreign policy, despite obvious weaknesses that might have been earlier remedied if subjected to Congressional examination.
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  The authors compare the vast number of oversight hearings by the Democratic Congress during the Reagan administration to those of the Republican Congress during the Clinton administration. The decline was almost by two-thirds.

  Congressional oversight and questioning has to be distinguished from Congressional effort at controlling foreign policy and shaping military tactics and strategy. The former is necessary and sometimes even useful, the latter, while not without some successes, is frequently disastrous.
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 Congress did not exactly cover itself with glory by persistently kicking President Reagan in the shins while he endeavored successfully despite them to bleed the Soviet Union financially and accelerate the end of the Cold War. The history of Congressional meddling in international relations includes the trade war tariffs of the 1920s and 1930s that played such a major role in the multiple catastrophes of the Great Depression - the isolationism that left the U.S. so unprepared for WW-II and cost the lives of so many U.S. soldiers in the first year of war - the destruction of U.S. intelligence capabilities after the Vietnam War that left the U.S. defenseless against the 9/11 terrorists - and today, the agricultural subsidies and tariffs that place farm state politics above the clear national interest in a prosperous world commerce and efficient sources of ethanol.
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  Today, partisan interests block a trade agreement with Columbia - a vital Latin American ally - and are actively attempting to undermine NAFTA, a hugely successful bipartisan trade agreement vital to the nation's diplomatic as well as economic interests.

  Senate acceptance of a subordinate role to the House is particularly criticized by the authors. The Senate frequently neglects serious deliberation of and input into key items in the president's agenda. However, the authors' greatest criticism is for the failure of Congress to challenge the Bush (II) administration's broad denial of information requests during its first six years. The Republican majority leadership refused to support individual member and committee chair demands for information.
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  The authors also criticize the "nuclear option" threat to bar use of the filibuster against judicial nominations. That the Republican majority - then of 55 Senators - would even contemplate such an effort is an indication to the authors of low esteem for the traditional prerogatives of the Senate.

  Just a few decades ago, when Democrats had firm control of Congress, the filibuster was subjected to venomous criticism by liberals. Now, all of a sudden, it is viewed as a fundamental aspect of Senate procedure. Needless to say, there is nothing to support it in the Constitution. FUTURECASTS tends to agree that it can play an important role. However, the highhanded manner of its current application probably highlights its role as a mere tool for minority obstruction while reducing its use as a method of assuring minority participation in deliberations and legislation.

 Members of the last Republican Congress spent much less time in Washington, left business up to committee leadership, staff and industry staff to craft legislation, and often didn't know what they were voting for. Legislation was rammed through subcommittees and committees with little deliberation or debate.

    Congress neither legislates nor deliberates as much as it used to. Members of the last Republican Congress spent much less time in Washington, left it up to committee leadership, staff and industry staff to craft legislation, and often didn't know what they were voting for. Legislation was rammed through subcommittees and committees with little deliberation or debate. This trend began under the last Democratic Congresses but thereafter became much worse.

  "But the lack of interest in the admittedly arduous process of going through multiple levels and channels of discussion, debate, negotiation, and compromise that make up a robust deliberative process has been a symptom of the broader malady in the contemporary Congress -- the belief, especially in the House, that deliberation, fairness, bipartisanship, and debate are impediments to the larger goal of achieving political and party success. In other words, the credo that the ends justify the means."

  Unfortunately, it is all too true that the opposition all too often would use such procedures not to improve legislation but to obstruct it and frustrate the majority's objectives. These are not academic processes. Politics is inherently a contact sport. The authors fool themselves and their readers if they expect reform efforts to change this.
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  Reformers always seek to advance their efforts by taking the moral high ground, but nobody should be fooled by this. Procedural reform is never neutral. Actual reform is always about achieving some partisan advantage. One need only compare the promise and reality of campaign finance reform to see this vividly in action.

Omnibus bills covering vast numbers of unrelated but often significant issues are increasingly used to ram material through with no deliberation or opportunity for approval or rejection of individual items.

  Use of closed rules has risen to about 50%. Use of self-executing rules and suspension of rules has also increased, all of which marginalize the minority by limiting debate and opportunity for input. Committee deliberations are increasingly partisan and formalistic, with party leaders, staff and lobbyists controlling the actual drafting work. Detailed mark-up by full committees is increasingly rare. "Emergency" meetings are routinely called at odd hours to limit member participation. This is often used to limit participation in House-Senate conference report hearings.
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  Omnibus bills covering vast numbers of unrelated but often significant issues are increasingly used to ram material through with no deliberation or opportunity for approval or rejection of individual items.

    "House leaders have become particularly enamored of packaging several stand-alone appropriations bills into one omnibus bill that is brought up at the end of the session, as all the members are prepared to go home and do not want to vote to shut down the government. By forgoing nearly all floor debate, they can pack these bills with numerous provisions that could never pass in separate votes." (They can frequently also avoid presidential vetoes in this way.)

  The circumstances faced by recent Republican Congresses had radically changed, the authors concede.

  "The Republican majority is narrow. The parties are even more ideologically polarized. President Bush is pursuing a conservative agenda that requires an aggressive partisan start in the House. Democrats are remarkably unified in their opposition."

  However, the costs include shoddy, poorly understood and crafted legislation, a diminished institutional standing for the Congress, and increased partisan rancor.
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  Pork barrel spending - a longstanding political tradition - has exploded in recent years, especially with regard to "earmarks" for specific projects in the districts of specific Congressmen. From 892 earmarks totaling $2.6 billion in 1992, the figures rose to almost 14 thousand earmarks totaling over $27 billion in 2005.
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The parliamentary Congress:

  The centralization of power by party leaders began under the Democrats in the 1970s and has since been increased.
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The ethics committee, after rebuking DeLay and others, was emasculated by Republican party leadership.

  Congressional leaders began to assist with campaign financing and now actually participate in member campaigns to assure loyalty. Involvement in state gerrymandering of Congressional districts reduces the number of contested seats.
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  Party leaders began to dominate lobbying firms and their campaign donations in the 1980s under the Democrats, but this was taken to new levels by Rep. Tom DeLay (R-TX) in the 1990s. Dozens of Delay staffers soon found new positions with Washington lobbying firms. Firms that were friends were rewarded and foes were punished. The authors go at some length into scandals involving lobbyist Jack Abramoff to demonstrate the extent of the ethical breakdown.
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  John McCain (R-AZ)  stood out as a determined opponent of these excesses. However, the ethics committee, after rebuking DeLay and others, was emasculated by Republican party leadership.
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  The authors demonstrate the "broken" nature of the House by relating how it handled - or mishandled - the vital issue of continuity in the event of a terrorist attack or other catastrophe that might wipe out a significant number of its members. This vital inherently nonpartisan issue was considered as if it were a partisan issue. There were no real hearings or deliberations. An expedited elections remedy was slapped together without the broad input essential for dealing with so complex a question, and the legislation was pushed through under inappropriately restrictive rules.
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  The Senate rejected the expedited elections bill but was pressured to go along with a House emergency quorum rule that probably violates the Constitution's quorum requirement. The Senate, even worse, had disdained all action on its emergency procedures. Four years after 9/11, the Congress had still failed to properly address these vital issues.
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  That Congress is currently incapable of productively addressing even such fundamentally vital issues is proof of its current dysfunctional nature. Narrow majorities now greatly increase the pressure for centralized party control.

  "Cracks in the institution began to show in the 1980s and early 1990s, during the last decade of the forty-year hegemony of Democrats in the House. They were exacerbated during that time by the appearance of Democratic president, Bill Clinton, after a full twelve years of Republican control of the White House. The sudden arrival of one-party control of both ends of Pennsylvania Avenue crystallized the minority and sharpened the partisan conflict, already high during the late 1980s as the parties became more unified and ideologically polarized and the permanent campaign became an ever-present fact of life."

"The rise of a sharper and more corrosive partisanship, bordering on tribalism, was driven by the permanent campaign, the higher stakes in election with majorities regularly at stake, and the growing role of more fundamentalist forces in politics, with issues framed in starkly black-and-white terms and adversaries transformed into enemies."

  This creates a "neoparliamentary system" in the House. It's highest priority under unified government is passage of the president's agenda and the success of the administration. Identification with the institutional interests of Congress as an independent branch of government is subordinated to partisan endeavor.

  "The rise of a sharper and more corrosive partisanship, bordering on tribalism, was driven by the permanent campaign, the higher stakes in election with majorities regularly at stake, and the growing role of more fundamentalist forces in politics, with issues framed in starkly black-and-white terms and adversaries transformed into enemies. This deeply partisan era was also shaped by the changing nature of the individuals coming into the elective arena, characterized by fewer politicians -- a term we view with respect, not disdain -- who care about compromise, product, and institutional health and more individual activists, ideologues, and entrepreneurs interested in purity and personal advancement. During this period public discourse, reinforced by transformations in the media, degenerated into a clash of ideological extremes -- the 'Crossfirization' of dialogue -- that has coarsened and trivialized debate in every arena."

  Unfortunately, the nation is at present wrestling with issues that are widely viewed in black and white terms. Abortion is either permitted or it is not, and current accommodations are just viewed as new positions from which to launch further efforts. Government either expands or it does not, and compromise and accommodation just means that advocates of limited government just lose slowly. The U.S. either plays a major role in combating militant extremism in the Middle East or it retreats from the arena. Partial efforts are doomed to failure.

  The problems have become highly complex, the authors stress.

  "They include a loss of institutional identity, an abdication of institutional responsibility vis--vis the executive, the demise of regular order -- in committee, on the floor, and in conference --, and the consequent deterioration of the deliberative process -- the signature comparative advantage of Congress as a legislative body."

The demise of "regular order:"

  "Regular order" is an elaborate set of procedural of rules, precedents, and norms. It facilitates orderly and deliberate policy making, ensures fairness and maintains "the legitimacy of Congress and the constitutional system."
 &

Conferences to reconcile differences between the House and Senate are now the setting for breathtaking abuses; minority party members excluded from negotiations, entirely new provisions added in the stealth of the night, and routine waivers of time for members to learn what is contained in the reports they must vote on."

  Minorities are always tempted to abuse these procedures to block majority rule, and majorities are always tempted to dispense with them to push their agenda through minority obstructions. With the demise of Democratic party dominance in Congress, the slim Congressional majorities began to undermine the regular order of the legislative process. This trend began with the last Democratic majorities during the 1980s but was pushed much further by the even slimmer Republican majorities of the 1990s.

  "Committees have been marginalized in myriad ways, from central party direction to ad hoc groups to omnibus bills. Floor debate and decision making is tightly controlled with restrictive rules and extended time for role-call votes. Conferences to reconcile differences between the House and Senate are now the setting for breathtaking abuses; minority party members excluded from negotiations, entirely new provisions added in the stealth of the night, and routine waivers of time for members to learn what is contained in the reports they must vote on."

    Several examples of poorly crafted, wasteful governance during the Bush (II) years are provided by the authors. Lack of oversight of the Iraq war and homeland security activities; the failure to accurately evaluate the costs of tax cuts and Medicare prescription drugs benefits; the unconstitutional effort to interfere in the Terri Schiavo end-of-life care litigation; pork laden highway bills; budgets based on smoke and mirrors accounting; and an energy bill without conservation or alternative energy provisions are cited.

  "Neither armed services committee pursued questions of force size, post-invasion plans, or the role of reserves and National Guard. Months and years after the passage of the resolution, Congress continued to play an episodic and inadequate role in overseeing the planning for and conduct of the Iraq campaign."

  The authors here are being disingenuous and themselves partisan in their analysis. Vast welfare entitlement programs, for example, have always been passed on the basis of absurd cost underestimates - smoke and mirrors accounting has permeated government at all levels for many decades at least since New Deal times and probably for much longer - government's ability to efficiently promote energy conservation and alternative energy development and usage is a liberal presumption based on facts not in evidence. Corn ethanol, after all, is where Congress chooses on a bipartisan basis to put most of its alternative energy money.
 &
  Congressional oversight during conflicts can be very useful, especially in revealing procurement and other spending abuses. However, Congress itself is always responsible for vast spending abuses. Despite a few notable exceptions, any expectation that Congress can play an active role in the conduct of operations or can make up for administration errors is ludicrous.
 &
  As for foreign policy, Congress generally puts domestic political considerations ahead of the nation's international relations interests. As stated above, the trade war levels of protectionism during the 1920s and 1930s was the most damaging example, but even in recent times, Congress is prone to "bash" major trading partners for the deficits in the nation's international accounts that Congress itself has caused through its budget and trade policies.

  Of course, the Bush (II) tax cut bills and the funding of the Iraq war do reach unprecedented levels for smoke and mirrors accounting. The authors do hit this barn-sized target with unerring accuracy.

  So, the "slippery slope" argument used since New Deal days by the small band of "limited government" conservatives against such budgetary tactics turns out to be true. What a surprise! Once big government gets rolling, these kinds of abuses do turn out to be politically inevitable and are inevitably expanded, whether under Democratic or Republican party rule.
 &
  As FUTURECASTS has insisted and explained since its first issue, government management is INHERENTLY inept - and government frequently has a negative learning curve. See, Government Futurecast at Part II. Congressional reforms may indeed be useful, but no amount of reform can make a managerial silk purse out of this political and bureaucratic sow's ear.

  The authors note that the projected $3.5 trillion ten year surplus was transformed by the Bush (II) tax cuts into a $3.5 trillion projected deficit, and revenues were reduced to 16% of GDP, the lowest in half a century. They do acknowledge that runaway spending played some role in the immediate blossoming of deficits.

  Indeed! There were few limited government conservatives in Washington any more after the 2000 election.
 &
  It is important to understand that economist "projections" are not "forecasts." They are not real. They are fictional calculations that are not expected to be correct. They are at best just planning devices and at worst are myths useful primarily to confuse the credulous - including almost all the media. Among other weaknesses, they are based on formulas that lack validity - rely on statistics that are inherently inaccurate - omit consideration of the unexpected emergencies that are always to be expected - and incredibly exclude the business cycle, an inherent feature of market economic systems for a mere two centuries. See, Hendry and Ericsson, "Understanding Economic Forecasts."
 &
  Revenues have in fact risen sharply since the tax cuts, and were soon back over 18% of a much enlarged GDP - exactly as the tax cut proponents promised. However, a Republican Congress had simply gone wild on the spending side. Even so, deficits were declining as promised until the recent economic slowdown. However, only idiots and Keynesians think that the business cycle can be avoided and need not be prepared for.
 &
  It is the restraint of spending that is essential, and the only practical way of doing that is apparently to starve the beast for funds by limiting its tax take. This is one of the primary purposes of the tax cuts. Being liberal, the authors do not even address the need for restraining the spending proclivities of Congress.
 &
  Higher tax rates can't reduce the deficit. Congress will simply spend any revenue increase. Only the end of the Cold War and the spending restraints of the 1994 class of Republican legislators produced the surpluses of the 1990s. Without that, the Bush (I) and Clinton tax increases would have accomplished nothing.

Reform:

  Congress, of course, is to a considerable extent a captive of its political and social agenda, the authors acknowledge. However, choices can be made.
 &

  The authors refer to the progressive reform movement during the Theodore Roosevelt administration that ended a previous period of centralized control in Congress. Committee governance based on a seniority system was the reform initiated (something liberals abolished during the 1970s when it got in the way of their agenda). The authors venture the hope that some reforming president will succeed Bush (II) and start a similar reform period.

  As the history portrayed in this book amply proves, and as stated above, political reform ALWAYS has a political and ideological purpose. Whether advocating centralized control late in the 1800s or committee control based on seniority in the early 1900s or the increase in party control and the demise of the seniority system in the 1970s or the reconstituting of centralized control at present, reform was never just an effort to achieve some objective ideal of institutional best practices. It was always a tool for achieving a political and ideological agenda. These authors are hardly unbiased in their views and purposes.

Gerrymandering is in fact the most powerful underlying factor in these problems.

  The authors then focus on gerrymandering. This is in fact the most powerful of the underlying factors. Competitive elections in competitive districts empower the center and increase incentives for compromise and accommodation. Safe districts empower the extremes and increase partisan rancor.
 &
  This is not the only factor, of course, since intense partisanship also infects the Senate. However, redistricting by neutral independent commission is used in a few states, such as Arizona and Washington, and its spread would be a vast improvement.
 &

"No package of reforms will force lawmakers to develop a strong sense of institutional identity and loyalty, to strengthen an empty ethics process, to open up the policy process for serious deliberation, or to develop a new fealty to the regular order. Reforms will not eliminate arrogance, greed, insensitivity, or impropriety."

 

One problem is that the tools currently being abused have legitimate uses and can't be simply eliminated.

  Internal reforms, too, would be more that just helpful. However, the authors acknowledge the limits of their expectations.

  "No package of reforms will force lawmakers to develop a strong sense of institutional identity and loyalty, to strengthen an empty ethics process, to open up the policy process for serious deliberation, or to develop a new fealty to the regular order. Reforms will not eliminate arrogance, greed, insensitivity, or impropriety."

  Indeed!

  One problem is that the tools currently being abused have legitimate uses and can't be simply eliminated. Restrictive rules and strong party influence play important roles. They overcome minority obstructive tactics and enable a majority to actually govern. The temptation to use such powerful tools broadly for narrow political advantage creates a problem that cannot be resolved.
 &
  However, some internal reforms would be clearly useful. A schedule that alternated pairs of full 5 day weeks on and pairs of whole weeks off would greatly facilitate business and reduce the current tendency towards three day work weeks as congressmen hurry out of Washington for long weekends. Rules changes could encourage deliberation and restore regular order as the prevailing legislative practice.

  "Every bill should have a period of at least twenty-four hours, but preferably three days, from the time it is reported to the time it is debated on the floor, so that lawmakers know what they are voting on. No vote in the House should last more than twenty minutes unless both party leaders or both party floor managers consent. Conference committees should not exclude any conference members; nor should they be able to include provisions never considered in either house, eliminate provisions included in identical form by both houses, or add provisions after conferees have signed off on the final product. Pernicious and pervasive earmarks should be curtailed, with every lawmaker required to disclose when he or she had a direct interest, financial or otherwise, in the contracts  or projects steered to his or her district or state, and parliamentary options made available for striking individual earmarks from bills on the House and Senate floors."

  Ethics and lobbying reform efforts are also promoted by the authors. Disclosure rules offer the most pragmatic approach, since if adopted, substantive ethics rules are certain to be full of exceptions and loopholes. Substantive rules can always be worked around while inevitably being subject to abuse to constrain legitimate activity.
 &
  Ethics rules are futile without effective enforcement. The authors mention proposals for an Office of Public Integrity or an independent commission to "screen complaints, handle initial ethics investigations, and process and audit lobby disclosure forms." The former has had some success in Britain, and several states have the latter. Formal investigations would remain in the Congressional ethics committees and final judgment in the House and Senate as the Constitution requires.
 &

The destruction of the seniority system provides a lesson in unintended consequences. Competition for leadership positions in the various committees has been determined not by capability or experience, but by who can raise the most money for the party campaign chest. In other words, leadership positions are now up for sale.

 Further campaign finance reforms are also recommended.

  This is a will-o-the-wisp, pursuit of which always has strong ideological overtones and always does more harm than good. Money flows like water around and over all obstacles. Unintended consequences are a frequent unpleasant surprise.

  The destruction of the seniority system provides a lesson in unintended consequences. It has indeed loosed many evils previously constrained by the seniority system. Competition for leadership positions in the various committees has been determined not by capability or experience, but by who can raise the most money for the party campaign chest. In other words, leadership positions are now up for sale. The authors suggest various restrictions, but they are all clearly inadequate. (Perhaps a return to the seniority system would be the most pragmatic alternative?)

  Divided government has since returned with significant changes in tone. So far, however, the president continues to get most of his way on important defense and intelligence legislation, and smoke and mirrors remains prevalent in Congressional budgeting.

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  Copyright 2008 Dan Blatt