The Incontinent Congress

The Broken Branch:

The cub reporter concluding his first day at the Legislature was appalled by what he had witnessed: vacuous oratory, ad hominem attacks, lobbyists buying votes, and a shoving match on the House floor. “If you think they’re bad,” said the cynical bureau chief, “wait ’til you see their constituents.” There’s a certain received wisdom in the timeworn newsroom joke. The men and women we elect represent us and are probably representative of us.

As a reporter for this publication, I thought I would never see anything as base, corrupt, or outrageous as what I witnessed at the Texas Legislature. Chicken magnate Lonnie “Bo” Pilgrim handing out $10,000 checks on the floor of the Senate; Gov. George W. Bush promoting an emissions-control bill drafted by a sludge-pit lobbyist; Ron Wilson (in one of his better moments) walking onto the Capitol steps in KKK drag; and 20 piss-wit House Democrats repeatedly voting for tort reform legislation paid for by the same interests that were spending millions to defeat them at the polls.

I was also privileged to witness acts of courage and intelligence, such as Garnet Coleman and Elliott Naishtat blocking Bush’s first attempt to privatize social services, Ernie Glossbrenner fighting for equitable school funding, Pete Laney obstructing Bush’s attempt to cut health insurance for children of low-income families, and Paul Sadler demanding a system of taxation that would equitably fund the state’s public schools.

Yet the venal, the corrupt, and the dishonest—remember Arlene Wohlgemuth arguing that health insurance for indigent children infringed on the right of poor parents to keep their children uninsured?—always surpassed the good.

A legislative system more corrupt, compromised, and dysfunctional was beyond my imagination.

Then I went to Washington to spend a year following Congressman Tom DeLay.

It is with Majority Leader DeLay and Speaker Denny Hastert’s hijacking of representative democracy that Thomas Mann and Norman Ornstein open their short, insightful book. They are specific. The act of hijacking begins at 3 a.m. on November 23, 2003. Richard “Doc” Hastings announces from the speaker’s chair that time for debate on the Medicare prescription drug bill has expired. “Members will have 15 minutes to record their votes,” Hastings says. With this simple procedural step begins the most disgraceful public spectacle in modern congressional history. There could be no better set piece with which to begin a book on the systemic failure of Congress.

The prescription drug vote, extended from 15 minutes to two hours and 51 minutes, illustrates almost every institutional failure Mann and Ornstein discuss in a book that has already made the Texas version of Oprah’s Book Club: Former UT System Regent Bernard Rapoport’s personal book distribution list. The bill was drafted by the pharmaceutical lobby in collaboration with Republican members of the Ways and Means Committee. Democrats on the committee were shut out. It was a major White House initiative, yet the Bush administration demonstrated its contempt for Congress by refusing to reveal the cost of the program. Hastert brought Health and Human Services Secretary Tommy Thompson onto the House floor to impress upon reluctant Republicans the administration’s determination to pass the bill, although House rules prohibit nonmembers from lobbying on the floor. The bill was “debated” under a modified closed rule that prohibits amendments. The lobbyists who drafted and supported the bill had arrived at their positions through the K Street Project, a political machine DeLay used to ensure that only Republicans were hired by influential corporate lobbying firms.

As the morning dragged on with the vote count frozen at 215 yeas to 217 nays, DeLay threatened to sink the campaign of the son of Michigan Congressman Nick Smith, who was retiring and supporting his son’s effort to replace him. Someone in the leadership apparently offered Smith $100,000 in campaign cash if he would change his vote. Then DeLay went to work on Republicans Butch Otter and Trent Franks. They capitulated, changed their votes, and other Republican representatives who had just been phoned by the president fell in behind them. The gavel came down on a final winning margin of 220-215.

The drug benefit vote even illustrated the institutional failure in the Senate. After the bill was passed in violation of the House’s canonical 15-minute limit on roll call votes, the speaker and the chair of Ways and Means excluded critical Democratic senators from the House-Senate conference committee. If House Republicans were the agents advancing this particular fraud, Senate Democrats were their passive collaborators, standing silently as Minority Leader Tom Daschle was one of several Democrats barred from the conference committee.

Mann, a senior scholar at the Brookings Institute, and Ornstein, a resident scholar at the American Enterprise Institute, use the 2003 prescription drug vote to raise the obvious question: How did the Congress reach such a state of dysfunction?

They point out that the Republicans who control the Congress weren’t the first to bend the rules to the disadvantage of the minority party. The authors compare the Medicare prescription drug vote to the day Democratic Speaker Jim Wright stopped the clock to salvage a 1987 budget reconciliation bill. Wright had already violated House procedural rules by sending the bill back to the Rules Committee to remove a provision that had alienated a majority of members. Then he adjourned the House and immediately reconvened to start on the next day’s business. Aware that he lacked the two-thirds majority required to bring the bill back to the floor on the same day it had been defeated, Wright created a new day.

When Wright found he was still one vote short and out of time, he kept the vote open for 10 or 15 extra minutes, until Texas Democrat Jim Chapman was brought out of the cloakroom to change his vote. The Republican representative from Wyoming at the time was Dick Cheney, who said Wright was “a heavy handed son-of-a-bitch who doesn’t know how to operate any other way.” Cheney declared Wright’s twisting of the rules “the most arrogant, heavy handed abuse of power I’ve ever seen in the 10 years I’ve been here.” Not only was the statement a crude violation of House norms at the time, it stands as a perverse historical contradiction of a White House that recognizes no limits to its power. Cheney would file unrelated ethics charges against Wright, which were later pursued by Newt Gingrich.

Gingrich, the architect of the Republican landslide in the off-year elections of 1994, fills a large space in the history of the modern Congress, and the authors recognize his importance. The history professor from Georgia was elected on his third try in 1978 and began leading a group of conservatives focused on overturning the Democrats. Gingrich funded and coordinated the off-year House elections in 1994, when Republicans picked up 52 seats. Yet he failed to implement the policy agenda outlined in his Contract With America, and was outsmarted by President Bill Clinton in the budget standoffs, in which Gingrich made the tactical mistake that led to the temporary closing of many non-essential government offices.

Newt’s legacy—beyond a bitterly divided institution—lies in the reforms he imposed upon the House Republican Conference.

Gingrich dismantled the committee system that had evolved in the decades following the revolt against Speaker Joe Cannon in 1911. He reduced committee staffs, diminished the authority of committee chairs, and reached around ranking Republican committee members to promote his loyalists, ignoring the established seniority system. The chairs he put in place were required to take loyalty oaths, making them an extension of the leadership office. Gingrich also reserved a large number of desirable committee appointments for freshman he helped elect in 1994. The result was a shift from a “committee-based process” to a “partisan leadership-based process.” Power that had been diffused among committee chairs was and remains concentrated in the leadership.

The authors are properly critical of Clinton’s reckless involvement with Monica Lewinsky and his subsequent dissembling about it. Yet they find the response of the Republican Congress, in particular Gingrich’s House, an institutional failure. Gingrich lieutenant and Judiciary Committee Chair Henry Hyde began the process, bringing in an outside staff prosecutor the authors describe as a “Clinton-hater.” Once the Republicans on the Judiciary Committee joined the hunt, DeLay seized control and drove the House toward impeachment. When DeLay’s impeachment campaign resulted in the loss of Republican seats in the 1998 elections, it was Gingrich who was forced to resign. DeLay had refused to allow the House to consider censuring the president, even as it was evident that the Senate would never vote to convict. “For both of us,” the authors write, “watching the House go through the impeachment fandango against President Clinton in 1998 marked the low point in our three-and-a-half decades of Congress-watching. We didn’t think they could sink any lower. We were wrong.”

“Lower” was the nadir the House of Representatives would reach after Bush became president. With a Republican in the White House, Majority Leader Hastert became a lieutenant carrying out the orders of the president, rather than the leader of an independent branch of government. Under Hastert and DeLay, the Republican House gave itself over to George W. Bush, abandoning any sense of what the authors refer to as “institutional patriotism.”

While they implemented the legislative agenda of their president, the Republican House leaders abdicated their responsibility to oversee the executive branch. “When the Republicans took control of Congress [in 1994], there was substantial aggressive oversight—for the period when Bill Clinton was president, that is—although the oversight of policy was accompanied by a near-obsession with investigation of scandal and allegations of scandal. But when George Bush became president, oversight largely disappeared. From homeland security to the conduct of the war in Iraq, from the torture issue uncovered by the Abu Ghraib revelations to the performance of the IRS, Congress has mostly ignored its responsibilities. The exceptions—for example, the bipartisan efforts in several areas by House Government Reform Committee Chair Tom Davis with his ranking member Henry Waxman—glaringly prove the rule.”

Here I would take exception with the authors. While Tom Davis isn’t as rabidly partisan as previous government reform chair Dan Burton, he rejects Waxman’s requests for subpoenas far more frequently than he allows them. When Waxman, a liberal Democrat from Los Angeles, prevails, it is because he has assembled a superior staff of investigators that turns up information that forces Davis’ hand.

While not as accommodating as the House, the more narrowly divided Senate also abdicated its constitutional responsibility. One of Ornstein’s Roll Call columns quoted in the book serves to illustrate the Senate’s failure to oversee the executive branch. Ornstein describes a May 2004 Armed Services Committee hearing at which Secretary of Defense Donald Rumsfeld and his generals testified on torture in the Abu Ghraib prison. As Rumsfeld was telling the senators that the Pentagon staff had prepared a thorough briefing chart, one of the generals interjected that they had forgotten to bring it along.

“Oh my,” said Rumsfeld.

For Ornstein, Rumsfeld’s “Oh my” response to leaving the critical piece of evidence across the river in Arlington defines the relationship between the two branches.

“Could anything more clearly demonstrate the contempt this department has for Congress? This was not a routine authorization hearing. This was a hearing testing the very core reputation of the Defense Department and the military. And they forgot the key chart!”

Another egregious example of the Senate’s failure to defend its position as a co-equal branch is the Republican majority’s willingness to abandon the filibuster—only to ensure that Bush’s judicial appointees are confirmed. The authors take on Senate Majority Leader Bill Frist, who claimed in a USA Today op-ed that there is a 214-year-old tradition of allowing every judicial nominee up or down votes before the Senate. “Why should George W. Bush’s be treated differently?” Frist asked. The threat of filibuster unfairly kept Bush’s judicial nominees from being brought up for a vote by the full Senate. In response, Frist threatened to invoke what has come to be known as the nuclear option, using a straight-up vote, with the vice president presiding over the Senate, to challenge the filibuster—thus eliminating it as a parliamentary mechanism that could be used in other circumstances.

“Here was the reality,” the authors respond. “For more than two hundred years, hundreds of judicial nominees at all levels had their nominations buried, killed, or asphyxiated by the Senate, either by one individual, a committee, or a small group of senators, before the nominations ever got to the floor.”

So we all now live with the Faustian bargain the Republican leadership of the Congress made with the president. Republicans on the Hill will do whatever is necessary to hold on to both branches, even if it requires surrendering the independence crafted by the authors of the Constitution more than 200 years ago. This new system of government divides power within the party, not among the three branches.

The systemic failure of Congress is best illustrated by what appears to be a tacit agreement between it and the president regarding appropriations. Bush will not interfere with the pork-barrel appropriations the congressional majority requires to remain in power, and the result is what conservative columnists Kate O’Beirne and Rich Lowry have described as appropriations “incontinence.”

The authors cite the work of Scott Lilly, who retired from the Democratic staff of the Appropriations Committee and is a senior fellow at the Center for American Progress. Lilly has studied “earmarks”—appropriations items individual House members control—in the highway bills enacted since 1956. In 1970 there were three earmarked highway projects. The number went up to 155 in the 1987 bill, “as many rank and file members demanded a piece of the action.” After the Republicans became the majority, the number of earmarks and their cost increased exponentially, starting with 583 in 1992, increasing to 1,850 at $9.5 billion in 1998, and most recently rising to “a jaw-dropping 6,371 earmarks, worth $23 billion,” in the 2005 bill. (Earmarks are not limited to highway appropriations.) “Over the past 59 years there have been 9,242 earmarks,” according to Lilly’s account. “Of those, 8,504, or 92 percent, have been inserted in the three highway bills enacted since Republicans took the House 10 years ago.” It is not by accident that George W. Bush holds the presidential record of one veto in six years. He accepts an appropriations process that is out of control as the price that two or three generations of taxpayers will have to pay to keep his party in power.

The authors cover a great deal of ground in a book that is immensely helpful to anyone puzzling through the systemic failure of the Congress. Yet general readers would have been better served by more anecdotal illustration of their technical arguments. For example, they and Barbara Sinclair of UCLA have done fine work documenting the increased use of the modified open rule on the House floor. Lacking are accounts of how modified or closed rules have destroyed the deliberative process. When a bill comes to the floor under modified rules that allow no amendments, the minority and any opponents of the bill are irrelevant
Representative democracy becomes what Massachusetts Democrat Barney Frank describes as “plebiscitary democracy.” The leadership writes the bill, and members, denied the opportunity to improve it, vote “yes” or “no.”

Mann and Ornstein disabuse readers of the notion that the Republicans are only taking to excess what Democrats did for 40 years. Wright, described as a student of legendary Speaker Sam Rayburn, tampered with the process, adding 10 to 15 minutes to the House clock on one occasion. Hastert and Frist have destroyed it. Gingrich described himself as a transformative figure. He was. Before he collapsed under the weight of a $1.5 million ethics scandal and his failure to anticipate voter reaction to the impeachment of Clinton, he transformed Congress into something far less than what it was when he arrived in 1978.

What’s to be done?

The authors understand that quick “reforms” enacted to address symptoms—such as measures aimed at the sort of corruption most recently associated with Congressman Randy “Duke” Cunningham and lobbyist Jack Abramoff—aren’t adequate. Congress is unlikely to fix itself. They see some hope in a more disciplined Democratic Party opposing the current majority, or a presidential candidate with the crossover appeal of a John McCain producing a president who would be “more inclusive, less partisan, and less divisive than we have seen in recent years.” And they argue that a repudiation of the Republicans at the polls might “trim the party’s ideological sails and diminish the degree of polarization, while giving Democrats the self-confidence and incentive to work for policy change.”

In the end, the most powerful agent of change they see is an electorate that will rise up and turn out the incumbents—the constituents we can only hope are better than the men and women they have put in charge.

It’s not likely that help is on the way anytime soon.

Lou Dubose is a former editor of The Texas Observer. His Random House book Vice: Dick Cheney and the Hijacking of the American Presidency (with co-author Jake Bernstein) will be released in mid-October.