In part one, I argued that Congress has become a deeply dysfunctional institution and that dysfunction threatens the fabric of American democracy. Spend an afternoon watching C-Span and what you see is not meaningful, deliberative debate on the part of our elected representatives, what you see is a series of endlessly obscure hearings, questions, continual dodging and weaving, posturing and speechifying. One sees little actual debate.
Congress’ dysfunction is in part rooted in the rise of the Imperial Presidency. The Cold War served to increase the President’s stature and authority and sustained that change for decades. The threat of danger from overseas – foreign affairs, within the executive’s realm of authority – allowed presidents to claim greater authority within the government (what Andrew Bacevich called the National Security State.
As the imperial presidency has accrued power, surrounding the imperial presidency has come to be this group of institutions called the National Security State. The CIA, the Joint Chiefs of Staff, the Office of the Secretary of Defense, the other intelligence agencies. Now, these have grown since the end of World War Two into this mammoth enterprise.
But the National Security State doesn’t work. The National Security State was not able to identify the 9/11 conspiracy. Was not able to deflect the attackers on 9/11. The National Security State was not able to plan intelligently for the Iraq War. Even if you think that the Iraq War was necessary. They were not able to put together an intelligent workable plan for that war.
The second paragraph points us to the real problem – the National Security State doesn’t work and Congress has failed to rein it in.
The Bush administration has aggressively used its PR construct – the War On Terror – to further expand Presidential power – with the full and willing collaboration of many members of Congress. Cloaking all its demands in “National Security” Bush and his cronies have pulled off a power grab so stunning it boggles the mind. Cheney has literally claimed that his office cannot be overseen by Congress since it constitutes a “fourth” branch of government. Bush administration policy has been predicated on the idea that “When the president does it, it’s not illegal.” Torture, rendition, creating an American gulag archipelago have all been justified in the name of national security and Congress has, for the most part, stood idly aside.
Stampeded by a fear of “appearing weak” too many members of Congress acceded to Bush’s demands for power without oversight. Robert Byrd’s Losing America includes a passionate defense of Congress’ Constitutional role as a check on Presidential power. The problem predates Bush and his administration but has grown especially grotesque under the Bushies’ misrule.
Another aspect of the problem is structural. The Senate is one of the most undemocratic – if not out anti-democratic – institutions in government. In The Frozen Republic (1996), journalist Daniel Lazare argues that the structure of US government set up by the Constitution by design thwarts the democratic process and inhibits, if not outright prevents, effective decision-making at the federal level. Lazare focused particular criticism on the US Senate.
The Senate resulted from a compromise – the smaller states were afraid the more populous states would run roughshod over them unless something kept them in check. The Senate was the result. The outcome has been an absurd imbalance in which the state of California – with some 36.5 million people – has the same number of senators as Wyoming, with 522,000 people – 1/72 as many people. Such an imbalance effectively disenfranchises California voters. More troubling, though, has been the actual practices of the Senate.
Senators can place anonymous holds on nominations – and block popular nominees from taking posts in the government. A single senator can derail legislation favored by 99% of the nation’s population by threatening a filibuster. The 40 senators from the 20 least populous states combined represent fewer people than the two senators from California. Aligned with one other senator, they can block legislation favored by 264 million other Americans. A Senate minority can’t enact its agenda, but it can block a popular agenda from being enacted. Democrats in 2008 wanted to get 60 senators – 60 being the magic number of votes it takes to break a filibuster. The Senate’s rules can turn one cranky, miserable political hack (I’m looking at you Joe Lieberman) into one of the most powerful people in the nation.
The Senate was envisioned as a brake on popular passions, a high-minded, deliberative body able to grapple with the profound issues of the day, but at least somewhat isolated from the popular moods by their long, six year terms. Rather than braking public passion, the Senate often seems to fall victim to them far too easily. Watching the Bush administration stampede senators to favoring the Iraq War was on the sorriest experiences of American history. Arguments that no one would believe that the President would ever lie about matters of such importance ring hollow in light of the emptiness of the Senators’ actions. The Senate barely managed to bestir itself to actually debate the great issue of war, of invading another nation, of preventive war. It was an utter failure.
The Senate’s ability to filibuster has been a mixed bag. There have been times that it has prevented undesirable things from happening. Other times – i.e. Strom Thurmond filibustering against Civil Rights – it has been a bastion of reactionary politics, standing athwart history shouting “No.” In recent years, Senators have been remarkable inept at their jobs and fearful that they might possibly be disliked by someone in the public. Watching the confirmation hearings for Alito and Roberts was an embarrassment as Senators seemed incapable of actually asking relevant questions. Both men sailed through without ever articulating their actual legal philosophies. The Senate got played and they let themselves get played and it was abject, depressing, pathetic. Look at it this way, I’m a Republican, I want Roe v. Wade struck down. I want a Supreme Court justice who will vote down Roe v. Wade. But, it’s unpopular so I get lucky in having the president nominate someone who has apparently never published anything about that case, and if I play my cards right, it’ll never come up in the hearing and when it does, I’ll hope the nominee dodges and weaves and nobody pins him down. By contrast, I’m a Democratic Senator and I damn sure don’t want anybody on the Court whose gonna vote down Roe v. Wade. I’ll spend six months questioning the nominee. I’m not gonna let him dodge and weave. It’s a pivotal decision and no way anybody who is nominated for the Supreme Court hasn’t thought about it and I damn well want to know what he’s thought. What happened was the opposite. Senators let themselves get played because they didn’t want to bestir themselves and possibly face a controversy. It was the saddest excuse for confirmation hearings held in America in a very very long time. Right wingers screaming “they deserve a fair up or down vote” stampeded weak-kneed, spineless senators away from actually holding, you know, real live hearings.
Ironically, at a time when the Senate most needed to fight like hell from the strength of its Constitutional role, it flailed and flopped. The mixed bag of the Senate’s ability to filibuster has been on full display for years.
A further aspect of Congress’ spectacular ineptness has been the culture of the permanent campaign. Other industrialized and complex modern nations manage to hold elections in a month. The last presidential lasted two years. From the minute their sworn into office, House members have to frantically raise money to pay for the election that is a mere two years away. The permanent campaign creates a culture in which House members highest value in practice is getting re-elected. Good government, good policy is a happenstance that occurs by accident. To respond to that reality, the Republican majority outsourced the actual writing of legislation to lobbyists (the K Street project). The executive branch, with its legions of staffers and civil servants, is able to dedicate the time to actually writing legislation. Bills are grotesquely complex, vast tangles of legalese (for a minor example, check out almost any bill coming out of Utah’s legislature; at times it takes a high lighter and three colors of pen to figure out what the bills actually say). Few Reps actually understand the legislation they’re passing – they’re so busy running for re-election, they don’t have time to study and understand the bills on which they’re voting.
As an outcome of the permanent campaign, few members of Congress focus their attention on preserving Congress’ constitutional role. Members of Congress, individually accomplished, intelligent men and women, somehow devolve, when as a group, into the lowest common denominator. Throw them into a room and Congress members suddenly fail to demonstrate leadership.
Individual members hide behind the arcane processes of Congress and avoid accountability for its mistakes while claiming credit for its success. The disconnect between Congress’ approval ratings as institution and the re-elect rate for its members should give us pause. And institution with a 20% approval rate should not have a 90% re-election rate (FWIW, I’m not sure those numbers are exactly right but they are in the approximate range).
In Daniel Lazare’s The Frozen Republic he argues that American political parties don’t act like mature political parties in any other democracy. Lazare argues that a mature political party gathers in a room every so often and hammers our a workable plan for governing – they work on the details, they argue over the mechanics. They debate the issues and draft a platform that actually makes sense, that could provide a framework for actual governance. The closest we’ve gotten to that in the US in a long time was Newt Gingrich’s Contract on with America. The Contract wasn’t coherent, it was internally contradictory but it gave Republicans something around which to rally. It carried them for a while but that was that. I’d be surprised if anyone running for public office had actually read their party’s platform and campaigned on it.
Finally, though this is not an exhaustive list, I can’t leave this topic without mentioning the deep distrust of a strong federal government inherent in the American body politic. The outcome has been a web of overlapping political divisions and subdivisions with a variety of powers and tax rates. In Utah, make a purchase: you are paying sales tax to the city, the county, the state, and very probably a mosquito abatement district or a sewer district. Elected officers at various levels in competing political divisions and subdivisions constantly jostle at one another, stepping on one another’s toes, stepping around one another. De Tocqueville argued in Democracy in America that America has decentralized power (in the form of voters) and centralized authority (in the form of government). Having devolved since then, America has a disorganized, chaotic system of government. State governments are often at odds with the Federal, cities and counties at odds with states and cities at odds with their counties. Look at the struggles in Salt Lake County over incorporated versus unincorporated areas of the county and fire and police services. State legislatures jealously protect their power and influence from encroachment at the Federal level, then turn around and step all over city and county governments. The Constitution sets very strict limits on what the federal government can do but in the process has hampered the federal government’s ability to set national policy. Federal policies have to coerce and bribe state’s to do the right things. A fight happens at the federal level to get some law passed and then has to be replicated at the state level, where legislators pick away at it, seeing just how far they can push back.
All these factors contribute to create a Congress unable to do its job and unwilling to do its job. If you’re not going to get blamed for the mistakes, and you can take credit for the successes, why fight why upset the apple cart? If you’re a Senator why give up your prerogatives when no one else will? If the states can ignore you, why fight hard for anything that might be a tough sell? And if all that matters is winning the next election, why care about good policy at all?