As a political scientist and a member of the House of Representatives, I have often lamented and been frustrated by the growing irrelevance of Congress. Likewise, the American people have become increasingly disenchanted with Congress. According to an October 2015 Gallup poll, the approval rating of Congress is just 13%, based on the public’s disgust with partisan gridlock and minimal legislative accomplishments. Even new Speaker Paul Ryan said, “The House is broken. We are not solving problems. We are adding to them. Neither the members nor the people are satisfied with how things are going” (Speaker Ryan’s Press Office 2015). What has brought the Congress, which the Founding Fathers placed first and foremost in Article I of the Constitution, to this dismal state of affairs?
HISTORICAL BACKGROUND
Much scholarly discourse over the years has been devoted to the ebb and flow of power among the three branches, especially the expansion of executive authority at the expense of Congress. Reasons often cited for this shift in power include the vagueness of Article II which allows the person in the White House, often abetted by the Supreme Court, to assume powers not specifically denied; and a shrinking world which, thanks to technology, has generated greater international involvement by the US and the increased need for crisis management best conducted by one person, not 535. Growth of a professional bureaucracy dating from the New Deal, with its access to critical information, and the advent of television which has allowed charismatic leaders like Ronald Reagan and Bill Clinton to bypass Congress and take their agendas directly to the people, have also been credited with contributing to the shift in power.
Still others cite the number of instances over the years when Congress has simply relinquished power to the executive to “get the monkey off its back.” Take the Gulf of Tonkin Resolution, for example, giving President Johnson carte blanche in Vietnam, and granting “fast track” authority to presidents, essentially reducing the role of Congress to a “yes” or “no” vote on multifaceted and multilateral trade agreements. Action after 9/11 stands as one of the strongest examples of abrogation of congressional power. A week after the worst terrorist attack in US history, Congress passed a broad “Authorization for the Use of Military Force,” (AUMF) providing President Bush unprecedented authority to engage in military action against any nation, organization, or person with any connection to the 9/11 attacks. The scope of the AUMF is so broad that it is still being used as legal justification for the use of force against ISIS and other terrorist groups.
So while the shift in power away from the legislative branch is not new, the weakening of Congress has worsened since 2010. By vehemently opposing President Obama from day one, Republicans in Congress have done a disservice to their own institution, ironically giving the executive they decry more power and turning public opinion against the very body that was designed to be closest to the people. Some might dismiss this position as overly partisan or argue that the current stalemate is simply the usual state of affairs when Congress is controlled by one party and the presidency by the other. A quick review, however, indicates that there is more to it than that.
Over the last 60 years, Congress and the White House often have been controlled by different parties. From the 79th Congress in 1945 to the current 114th Congress, there have been only 13 sessions when one political party controlled the House of Representatives, the US Senate, and the presidency. Somehow, though, despite party differences, things got done during earlier years, when there was a spirit of compromise to serve the greater public good. President Eisenhower and a Democratic Congress launched the Interstate Highway system and NASA, and the President signed civil rights legislation protecting the right of African Americans to vote. President Nixon signed PL 91–190 creating the Environmental Protection Agency as well as the Clean Air Act and the Clean Water Act. Despite a rise in obstructionism under House Speaker Newt Gingrich which resulted in a government shutdown in late 1995 and early 1996, President Clinton successfully championed the State Children’s Health Insurance Program, providing health insurance to children in low-income families, and Congress enacted extensive welfare reform. In 2008, at the height of the financial crisis, President George W. Bush worked with a House and Senate led by Democrats to create the Troubled Asset Relief Program (TARP) and save Wall Street from collapse.
RECENT DEVELOPMENTS
There has been little willingness by Congress, however, to work with the Obama administration. Even when both Houses were controlled by the Democrats in 2008–2009, Republicans in the Senate staged 137 filibusters which blocked the passage of many significant pieces of legislation that had passed the House, including the DREAM Act and the Pay Check Fairness Act. Senate Democrats were forced to use budget reconciliation, a way to bypass the 60 vote threshold necessary to advance legislation, in order to pass the Affordable Care Act (ACA); they also had to modify the longstanding rules of the Senate in order to approve the President’s judicial nominations.
After the Democrats lost control of the House in the crushing midterm election of 2010, the situation declined even more. In a showdown over lifting the debt ceiling, “sequester” was born. When the houses failed to agree on a mix of budget cuts and tax reforms, Congress created a bipartisan super committee to come up with at least 1.2 trillion dollars in spending reductions or face across-the-board cuts to mandatory and discretionary spending. The committee members were unable to reach agreement, so in March 2013 sequester went into effect. When they originally agreed to such an absurd arrangement, actively relinquishing their constitutional power of the purse, few imagined that the Congress would be so divided that no compromise could be reached. In retrospect, it was a terrible decision that further contributed to the demise of legislative authority.
During the 113th Congress, the Republican majority in the House continued to block even bipartisan legislation coming from the Senate. They refused to bring up S. 744, the immigration reform bill which passed 68–32, leading the President to establish the Deferred Action for Childhood Arrivals (DACA) program through executive order. They shut down the government for two weeks in October 2013 in a futile attempt to defund the Affordable Care Act. Later, they voted to sue the President regarding the ACA, the first time in history the House as a whole has attempted to bring a lawsuit against the Commander in Chief.
During the 114th Congress, the stalemate has worsened; gridlock has replaced governing. Continuing resolutions and omnibus appropriations bills passed at the final hour have become the norm. Immigration reform remains unaddressed and calls for climate change legislation have been eclipsed by Republican-led efforts in the House to roll back environmental protections, which have gone nowhere in the Senate. Similarly in October 2015, the House, with just one Democratic vote, passed a budget reconciliation measure, defunding Obamacare and Planned Parenthood, but the President has already stated he will veto the measure. The House Freedom Caucus effectively blocked consideration of the Export-Import Bank reauthorization for over a year, threatened to shut down the government at the end of Fiscal Year 2015 over the federal funding of Planned Parenthood, and opposed raising the debt ceiling, threatening the full faith and credit of the United States.
It was not until Speaker Boehner, facing an untenable situation and a “motion to vacate the chair” made by Rep. Mark Meadows, resigned and began “cleaning the barn” for his successor, Paul Ryan, that things began to move. Employing a rarely used discharge petition, supported by all Democrats and a fraction of Republicans, members called up the Export Import Bank reauthorization bill for a floor vote where it passed on October 27, by a margin of 313–118. A budget agreement authorizing funds for the remainder of the current and next fiscal year, as well as a suspension of the federal debt limit until March 15, 2017, also passed the House with all Democrats and only 79 Republicans voting in favor. Despite opposition from a similar proportion of Senate Republicans, this bill became law on November 2, 2015.
This “broken” situation results from the unfortunate culmination after several decades of developments that fall into two categories: external forces, and internal changes in both Congressional structure and process, especially in the House.
Causes
This “broken” situation results from the unfortunate culmination after several decades of developments that fall into two categories: external forces, and internal changes in both Congressional structure and process, especially in the House. Some have involved direct abrogation of authority while others have had the unintended consequence of greatly hamstringing the institution. In effect, together they have created a perfect storm.
The external force most commonly blamed is the gerrymandering of House districts, which has left so few competitive seats in any given election cycle. Indeed, according to CQ Weekly (9/28/2015), only 32 seats of 435 are in play in 2016. This typically pushes many candidates further to the Right or Left because of greater fear of losing a primary battle than the general election. This is especially true among Republicans who can be aggressively targeted by the Tea Party.
With more extreme candidates elected in safe seats, there is less likelihood of compromise, both by inclination and necessity, when the member gets to Congress. These candidates tend to be ideologues from the outset and then for pragmatic reasons (media attention, having a free ride in the primary, getting reelected) they become even more rigid in their fringe beliefs.
As former New York Times Washington Bureau Chief Hedrick Smith wrote in the LA Times, “The very strategy that cemented the party’s House majority also entrenched the rump faction of anti-government extremists who toppled Boehner and will menace his successor” (2015). Thomas Suddes echoes this sentiment in the Cleveland Plain Dealer: “With protected political monopolies back home, the rebels take little or no political risk and pay no political price for opposing their speaker and adopting extremist positions that bring Congress to a halt.” Others like Nathan Gonzales and Bill Bishop would argue that this has more to do with “sorting,” people living in proximity to the like-minded, than gerrymandering, but regardless, the result is the same (Gonzales Reference Gonzales2015).
Furthermore, the few swing seats that do exist are the ones most heavily targeted by both sides in an election and are therefore the most likely to turn over. For example, New Hampshire’s first Congressional District and New York’s 24th /25th have alternated between electing Democratic Members in presidential years and Republicans in off years for the last four congresses. Consequently, when a moderate of either party is elected, he or she may try to work across the aisle but has a difficult time building seniority or enough status to influence the policy-making process. This is exacerbated by the members’ need to avoid controversy as much as possible and to spend more time campaigning than legislating in order to get re-elected in targeted districts.
The rise of Super PACs in the wake of the Citizens United v. Federal Election Commission decision is also partially responsible for the stagnation of Congress. The ability to pour millions of dollars into races at the last minute diminishes the need for more traditional means of support when running campaigns. This in turn lowers voter turnout, weakens parties, and allows non-establishment candidates, who are generally more extreme, to pull off upsets in primaries. Note, for example, Ted Cruz (R-TX) who upset the establishment candidate, Lieutenant Governor David Dewhurst, in a primary in 2012. In Indiana, Richard Murdock defeated fellow Republican, Senator Richard Lugar, a seven term incumbent, in a primary, with significant support from conservative groups. Similarly, extremist Christine “I’m not a witch” O’Donnell upset a popular former governor and representative, Michael Castle, in the Republican primary for the Senate in Delaware.
Finally, 24-hour cable news stations have also contributed to the hardening of partisan divisions in Congress with their simplistic red state, blue state analogies and their featuring of extremist talking heads to discuss every issue. Moderates are less entertaining than flame throwers. Far less attention is paid to passage of a compromise bill than to a shouting match in the chamber. Likewise, in the so-called Washington “Hill rags,” whose coverage can enhance a member’s reputation as a power player inside the beltway or relegate him or her to the back bench, hard work and common sense are seldom highlighted.
Internal dynamics in both houses are also to blame, but this essay will focus on changes in the House. First, the traditional committee process has devolved into virtual rubber stamping of the leadership’s position. Committee chairmen have little power when it comes to setting agendas, moving bills, or considering amendments. This is done primarily in the leadership office or through the handpicked Rules Committee which serves at leadership’s pleasure. The role of ranking members is largely symbolic, and hearings are so scripted in terms of testimony and debate as to be moot. Many bills go to the floor, written by majority staff or negotiated by the “Big Four” behind closed doors, without ever being fully heard in committee. The increased use of closed rules with limited amendment possibilities likewise leaves little opportunity for collaboration or compromise on proposed legislation.
Time is often wasted putting forth bills that have no chance of passing the Senate or being signed by the President. They are simply “message measures” intended to put the minority “in a box,” which further hardens the partisan divide and contributes to the inability to get anything done. The minority’s increased use of “Motions to Recommit” as messaging instruments designed to get the majority on the record voting against “feel good” or “gotcha” measures similarly adds to feelings of resentment across the aisle.
Furthermore, in the mid-nineties, Speaker Dennis Hastert established the so-called “Hastert Rule,” an informal process which prohibits floor votes on any legislation unless it has the support of a majority of the majority party. More recently this has morphed into the Freedom Caucus Rule under which bills are kept from the floor pending the blessing of the “New Conservative” or Tea Party standard bearers. This stifles compromise, renders most Democratic proposed legislation pointless, and log jams the process. Should a Speaker ignore this practice, he or she faces the possibility of losing the gavel. This sets a dangerous precedent, where ideological purity becomes paramount and moderate legislation is kept from consideration by the full House.
The wholesale ban on earmarks by the Republicans in 2011 has further limited the leadership’s ability to move legislation. Leaders and chairmen have nothing to offer lawmakers as incentive or rewards for passing appropriations bills or comprehensive policy measures. While the ban was politically popular, it has proven to be institutionally crippling, by hampering the ability of Congress to target specific areas of spending, impeding congressional action, and by extension enhancing the power of the Executive. Rather than Members of Congress selecting projects significant to their districts, the Executive is able to set priorities and dole out funds through complicated formulas or federal grant programs with little legislative input or oversight.
The wholesale ban on earmarks by the Republicans in 2011 has further limited the leadership’s ability to move legislation. Leaders and chairmen have nothing to offer lawmakers as incentive or rewards for passing appropriations bills or comprehensive policy measures.
Likewise, as noted earlier, there are representatives who have no reservations about shutting down government. Indeed, doing so is a victory for them. These members want government in general and Congress in particular to do less. As Stan Collender, who formerly worked for both the House and Senate budget committees, stated in a September 2015 interview with Politico, many members of Congress are not concerned about how a shutdown negatively affects government agencies because “an agency that isn’t running well is an excuse to cut it next time.” Such extreme partisanship has led to political brinkmanship which not only debilitates Congress but gives the President additional power because it is up to him to decide who works and who does not by defining what are essential operations that must continue during a government shutdown.
The decline in personal interaction and camaraderie is also cited as a cause of the demise of civility and growing unwillingness to work across the aisle to get things done. Fewer members move their families to DC; more House members sleep in their offices and go home every weekend; and members tend to congregate in their own party clubs rather than at common watering holes. Furthermore, the compressed schedule whereby the House is rarely in session more than four days a week, with the first day a “fly-in day” beginning at 6:30 PM, contributes to lack of familiarity among members. One less night a week also leads to a more intense schedule of political events and fundraisers, leaving little time for interaction and thereby enhancing the partisan separation. Even American Israel Education Foundation (AIEF), a charitable organization affiliated with AIPAC, now takes Democrats and Republicans on separate trips to Israel. So there is little opportunity for personal intercourse beyond official Congressional Delegations (CODELS), which have been reduced in size and number because of cost, and tend to provide short-time, one-shot opportunities for contact rather than develop ongoing relationships.
An even greater contributor to diminished collegiality may be the increased tendency by some in Congress to denigrate the institution itself and by association, its members. They publicly villainize government, criticize the Washington scene, and campaign against pay raises or benefits for members as though the position itself is not even worthy of compensation. These same members of Congress also support cutting legislative staff, with the House proposing a 2015-2016 budget that would reduce funding for the legislative branch by 17 percent, compared with 2010 levels. Legislative staffers are critical for verifying information, analyzing legislation, and proposing good public policy. By reducing the staff’s impact, members will become even more reliant on outside interest groups and their lobbyists when formulating legislation. Such special interests often have axes to grind that further politicize the process.
Some members also tend to bring the rancor of the campaign with them to Washington, personally attacking members of the opposite party because it is a guaranteed vote getter/fund-raiser with their base. Republican Leader Mitch McConnell said that the goal of Senate Republicans was to make President Obama a “one term president” (Kessler Reference Kessler2012). House Majority Leader Kevin McCarthy said that the special committee charged with investigating the terrorist attacks in Benghazi was actually set up to bring Hillary Clinton’s numbers down as she campaigned for the Democratic nomination for President (Bade Reference Bade2015). Unflattering pictures of Democratic Leader Nancy Pelosi are commonplace in Republican fundraising pitches and television ads.
There also has been an erosion of the traditions of address and debate on the House floor. The new lack of decorum is evident in Rep. Joe Wilson shouting, “You lie,” as President Obama explained his health care plan to Congress in 2009; and Rep. Randy Neugebauer yelling, “Go back to Kenya,” during President Obama’s 2013 State of the Union address. Alan Grayson raised considerable campaign money from his base when he said that the Republican health care plan is for Americans to die quickly, but he made few friends across the aisle. Such behavior does not translate into bipartisan cooperation and willingness to work together to pass bills.
CONSEQUENCES
While Congress wallows in inertia, power has shifted not only to the president but to other institutions as well. The US Supreme Court has stepped in to decide important public policy matters rather than just adjudicating laws. Congressional inaction has accounted for greater judicial activism in cases involving campaign finance, equality issues, and freedom of religion. In the Citizens United case, the Roberts Court opened the door to virtually unlimited campaign spending by ruling the government could not impose limits on expenditures by independent non-profit organizations. The Court, in Obergefell v. Hodges, ruled that same-sex couples should be allowed to marry wherever they live, and states could no longer ban same-sex marriages. On the other hand, the Court limited a woman’s right to insurance coverage for contraceptives in its Burwell v. Hobby Lobby Stores, Inc. decision, ruling that some companies could impose that restriction based on religious grounds. It also rolled back Section 5 of the 1965 Voting Rights Act in Shelby County v. Holder. These were all controversial cases in which nine Supreme Court justices—rather than the 535 members of Congress—made critical public policy decisions.
The vacuum caused by congressional inaction also has been filled by state legislatures, as they move into programmatic areas long deemed congressional prerogatives. As Congress struggles to find a way to replenish the highway trust fund, 15 states have increased or indexed gas taxes to pay for crumbling infrastructure and/or new construction. In the wake of Congress’s failure to clarify Section 5 following the Shelby County decision, legislatures in 19 states pushed to enact voter suppression laws, by requiring voter identification cards, shortening early voting periods, and making registration more difficult. Some 13 states have enacted various anti-abortion laws in recent years; and 46 states have tried to take the immigration issue into their own hands, with enacted legislation relating to immigration increasing 16 percent in the first half of 2015, from 132 laws in 2014 to 153 laws in 2015, according to the National Conference of State Legislatures.
The vacuum caused by congressional inaction also has been filled by state legislatures, as they move into programmatic areas long deemed congressional prerogatives.
Since the tragedy at Sandy Hook Elementary School in Connecticut, eight states have taken actions to enhance gun control laws by strengthening background check systems and 18 have otherwise moved beyond federal standards. Congress has not voted to raise the federal minimum wage since 2007, but a number of states and cities have increased the minimum wage well above the federal standard, with some requiring employers to pay wages double the current regulation. Surprisingly, this is not a red state versus blue state issue; in the 2014 elections, while simultaneously electing Republicans, voters in Arkansas, Nebraska, Alaska, and South Dakota supported binding referenda to raise the minimum wage.
States have also acted on laws and regulations for new and emerging technologies where Congress is unable or unwilling to get involved. These include provisions related to unmanned vehicles, internet gaming, ride sharing services such as Lyft and Uber, and online daily fantasy sports. Despite 23 states having passed medical marijuana and four having legalized the recreational use of marijuana by adults, with ballot initiatives and legislation pending in several others, Congress is mired down on possibly the fastest moving social issue in history.
CONCLUSION
Congress goes into the last year of the Obama administration under the new leadership of Paul Ryan who has promised to “rule the House a different way.” Many fear, however, that this change is unlikely to quell the conflict within his own party where members of the House Freedom Caucus have expressed skepticism, much less across the aisle where Democrats have already begun to demonize his budget-slashing record and calls to privatize Social Security. Regardless, it is anticipated that little will get done in 2016 as the clock ticks towards Election Day. Indeed, in an effort to placate conservatives, Ryan has pledged not to deal with immigration during the remainder of the President’s term; and major tax reform is even less likely without Ryan as chair of Ways and Means. Promised procedural changes within the Republican caucus, like opening up membership on the Steering Committee to younger, more conservative members and developing more formalized procedures, could give the far right more power and deepen the partisan divide in the House. The jury is out.
Cataclysmic events, charismatic presidents, demographic shifts, and historical developments all have clearly contributed to Congress’s loss of power since 1789. This trend has escalated in recent years, however, due in large part to changes within Congress itself. In short, these changes have centralized control in the hands of a few, eliminated opportunities for meaningful participation by most, and altered the social fabric of the institution. As a result, hostility and partisanship have increased at the expense of compromise and problem solving.
Scholars have proposed a number of reforms to reenergize Congress and save it from itself. These include nonpartisan, non-elected redistricting commissions and extending House terms to four years. Others have suggested term limits and campaign finance reform as possible silver bullets. Forcing the House and Senate to meet concurrently, requiring bipartisan seating in committees, and encouraging across-the-aisle social gatherings might also improve chances of success.
While in theory these may sound reasonable, in reality they are highly unlikely to be enacted in the current political climate. Unlike in many states where legislatures have been “reformed” by the voters through the initiative process, there is no such mechanism available at the national level. Only Congress can reform itself, a process unlikely to be undertaken by incumbents who might be disadvantaged by change, in a dysfunctional environment that is paralyzed by hyper-partisanship. To quote the great philosopher Pogo, “We have met the enemy and he is us.”
ACKNOWLEDGMENTS
The author wishes to acknowledge the valuable assistance of David Rosenbaum, Legislative Director.
