May 11, 2011
With Responses From
May 11, 2011
9 Min read time
Few members of Congress are as well equipped as Jim Cooper, intellectually and temperamentally, to reflect objectively on the institution’s strengths and weaknesses. Rather than commenting on each of his propositions, I will take a few steps back, identifying three fundamental areas of congressional performance. Each is closely related to the strength and effectiveness of the institution, and each is rendered more challenging when Congress and the country are sharply polarized. Like Cooper, I will concentrate mainly but not exclusively on the House.
First, in order to legislate coherently, knowledgeably, and with legitimacy, House leadership must strike critical balances between centralization and decentralization and between partisan discipline and the accommodation of competing forces. Cooper is less critical than he might be of the era when committees were more autonomous and powerful. Some committees were indeed great sources of initiative and expertise, harnessing the energies and talents of disparate members effectively. However, coming to the House a few years after Cooper, I remember committees too often reporting bills that divided the Democratic Caucus and had to be amended on the fly as the whip counts came in. Even with an assertive Speaker such as Jim Wright, committees, at a minimum, represented competing power centers and often fell short when a unifying agenda or message was needed. A corrective was required. It is telling that when Democrats returned to power after the years of Republican control (1995–2006), few if any members called for a return to the previous degree of decentralization.
That is not to say that the Gingrich-Hastert era offers a model worthy of emulation. The ascent of Newt Gingrich to Republican leadership in the early 1990s contributed more to the increasing polarization of the House than did any other event of the past thirty years. In 1994 Gingrich rode a fierce anti-institutional critique to victory and proceeded to concentrate power in the speaker’s office to a degree not seen in almost a century. Upon succeeding Gingrich in 1999, Dennis Hastert professed his desire to return to the “regular order.” But committees remained under tight constraints, and with the advent of unified Republican control of government under President George W. Bush, House leadership assumed an even harder edge through tactics designed to eliminate dependence on—or even participation by—Democrats, while keeping the narrow Republican majority in line.
When Democrats returned to power in 2007, they avoided the worst abuses, such as the three-hour roll-call vote on Medicare prescription drugs in 2003—which gave Republican leaders time to sway votes on the bill—or evicting opposition members from committee rooms. The new Democratic leadership also gave wider berth to committee operations. But floor proceedings were still highly regimented, and conference committees remained a shadow of their former selves. The challenge continues now, as the Republicans resume leadership. The new majority touted the four days of debate (February 15–18) on the continuing resolution to fund government operations for the balance of 2011 as a sign of new openness and inclusion. But the procedure avoided committee consideration completely, and the rules governing the debate forbade any amendments that would have seriously altered the spending priorities in the leadership’s bill.
Opposition to earmarks subordinates congressional power to partisan advance.
Centralized control under both parties has reflected the political reality of heightened partisanship—a polarized, closely divided House, with each side inclined to take full advantage of any opening provided by the other. But there is still room to adjust partisan practice, and good reason to question the assumptions that have often informed it. It is fallacious, for example, to regard leadership strength and committee vitality in zero-sum terms. Effective party and committee leadership can be mutually reinforcing, producing a better legislative product and a smoother route to passage. A case in point is the comprehensive financial services–regulatory reform bill brought to the floor by the Democratic leadership in 2009 under permissive rules of debate. The bill, reported by the Financial Services Committee under Barney Frank’s leadership, was the result of months of hearings and markups that had involved most committee members. While that was not sufficient to attract Republican votes in the sharply divided House, it produced a better designed and more legitimate product in the end.
Second, Congress must safeguard its constitutional prerogatives and its institutional role in relation to the executive. One of the most important arenas in which institutional powers are played out, and the one with which I am most familiar, is appropriations. The appropriations committees embody the constitutional “power of the purse” and represent an essential instrument for holding the executive branch accountable and for exercising full partnership in the setting of national priorities. This institutional role is, or should be, distinct from jockeying for partisan advantage within Congress. It also helps explain the restrained partisanship that has historically characterized committee operations: appropriations members have a common responsibility to hold the executive branch accountable, regardless of which party is in control in the White House or Congress.
The partisan divisions and tactics of the full House are seeping into appropriations. On most appropriations subcommittees, the initial formulation of bills continues to be relatively cooperative across party lines. This may change in the 112th Congress, with an unprecedented disparity between the parties in their spending priorities and budget strategies. Until now, however, partisan divisions have mainly emerged in full committee markups and, especially, on the floor.
This hit me with full force as I managed the Homeland Security appropriations bill on the House floor in 2007, my first year as subcommittee chairman. A band of some three dozen members—mostly younger, mostly from the right-leaning Republican Study Committee—took full advantage (and then some) of the open rule under which appropriations bills are traditionally debated, offering trivial and pro forma amendments in succession, each providing the opportunity for a repetitive string of five-minute speeches. The most prominent theme of the protests, to the extent there was one, was earmarks, but the main intent seemed to be merely to throw the House into disarray. We finally brought the debate to a conclusion after 27 hours (compared to nine the year before). Many of the subsequent appropriations bills were subjected to similar tactics; it took 169 hours to debate them, compared to 101 hours the year before.
Another kind of partisan disruption greeted my bill in 2009, as amendments to prohibit the transfer of GuantÃ¡namo Bay detainees to U.S. soil were offered in full committee and on the floor. The provisions were not germane to the bill but were being pushed by Republican leaders at every opportunity to embarrass the Obama administration and put vulnerable Democrats on the spot. With some difficulty, we contained Democratic defections. Then the storm clouds lifted and congratulations were exchanged across the aisle for what in reality had been a bipartisan bill all along. But the experience laid bare the unsteady equilibrium between the norms buttressing the institutional role of appropriations and the struggle for partisan advantage, and there could be little doubt in which direction the balance was tipping.
Such tactics can render appropriations markups and floor debates indistinguishable from the partisan fights characteristic of more typically controversial legislation. Getting appropriations bills through the process in a timely fashion and gaining bipartisan support has become more difficult. In the election years of 2008 and 2010, the Democratic leadership’s response to the increasingly contentious appropriations battles was to pull the bills back from full committee and floor consideration, sparing vulnerable Democrats “gotcha” votes destined for campaign ads. The leadership reckoned that even if the bills made it through the House, they would likely face Senate filibusters or, in 2008, a presidential veto. Democrats then attempted to pass omnibus bills after the elections, which, given the election outcomes, succeeded in 2008 and failed in 2010. I was critical of such risk-aversion, especially in 2010. It revealed an increasing tendency in both parties to subordinate the appropriations process to partisan politics.
The Republican attempt to stigmatize congressionally directed appropriations, or earmarks, is part of this larger pattern of subordination. With scattered abuses widely publicized and the budgetary impact absurdly exaggerated, the House Republican Conference has prohibited the identification of discrete projects—or even the upward adjustment of the administration’s proposed funding levels for public works and military construction projects—in spending bills. It should come as no surprise that Democratic and Republican presidents alike favor measures such as the line-item veto or earmark bans that reduce congressional funding discretion. But for members of Congress to acquiesce is to value short-term rhetorical advantage over Congress’s constitutional prerogatives and the responsible assertion of legislative powers.
Strong leadership and committees can be mutually reinforcing, producing better bills.
Finally, Congress must recover and maintain a bipartisan as well as a partisan capacity. The organizational strength and solidarity that congressional parties have developed since the 1970s, particularly in the House, have enhanced performance in many ways by overcoming fragmentation and enabling the majority to rule. I take considerable pride in periods of extraordinary partisan achievement such as 1993–94 and 2009–10. But I am also a veteran of the budget battles of the 1990s, which leads me to react with alarm to two aspects of our current budget situation. First, our fiscal challenges, including the future of our entitlement programs and the need to raise revenues commensurate with necessary expenditures, are even more difficult than those Congress faced in the ’90s. And second, we have mostly lost our capacity to take these challenges on in the bipartisan fashion that history teaches us is almost always necessary. Reaching agreement was extraordinarily difficult in the ’90s, and it seems almost inconceivable now.
Bipartisan accommodation has its pitfalls; it can render legislation muddled or ineffective, particularly when the gaps being bridged are deep and wide. But bipartisan capacity can also be a source of strength, as it has been for committees such as Transportation and Infrastructure, Armed Services, Agriculture, and Appropriations. But even on these, and certainly on most other, committees, partisan divisions have deepened in recent years. In some instances, more coherent legislation has resulted, more consistent with a given political ideology. But the route to final passage has become more difficult, as the languishing of numerous congressional reauthorizations year after year suggests.
These effects are greatly exacerbated in the case of fiscal policies, which require political leaders to face unpleasant realities and take on adversity. The bipartisan budget agreement of 1990 and the comprehensive budget bill of 1993, which was enacted with Democratic heavy lifting alone, helped create the roaring economy of the 1990s and a federal budget that was not only balanced but generated sizable surpluses. The George W. Bush administration then abandoned pay-as-you-go and other budget constraints, and by the time the great recession of 2007 came around, the country found itself in a position of dangerous fiscal weakness.
We must now find our way back by bringing the economy to full strength (the best cure for deficits and much else) with the help of targeted countercyclical investments, while charting a steady long-term course to fiscal balance. Fixation on partisan talking points—no tax increases, cuts limited to domestic discretionary spending, no entitlement changes—is deceptive and counterproductive. The National Commission on Fiscal Responsibility and Reform, chaired by Erskine Bowles and Alan Simpson, correctly highlighted the need for a comprehensive approach and an all-hands-on-deck mentality, whatever one might think of its specific proposals. Positive action on these matters of grave national import may well require extra-congressional mechanisms, as it has in the past, but it will also require Congress to recover and repair its capacity to transcend partisan divisions.
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