The Dysfunctional US Senate
by Charles Lemos, Wed Aug 04, 2010 at 12:06:37 AM EDT
This week it is the turn of George Packer, the noted journalist, columnist for Mother Jones, author and playwright, to write on the United States Senate. Taking to the pages of the New Yorker to pen this latest installment of what has become an all too regular occurrence among observers of our body politic, Packard asks the now oft-repeated question of just how broken is the Senate?
The answer is very. His twelve page masterful essay, full of insightful anecdotes and telling quotes, traces the descent of the Senate. Once a "cozy atmosphere that encouraged both deliberation and back-room deals," the Senate has become a dysfunctional, fractious chamber populated by “ideologues and charlatans” - to quote the oft-used characterization made by the Congressional scholar Norman Ornstein - who are governed by arcane, byzantine, and frankly absurd procedures and incapable of producing the necessary legislation or confirming the necessary appointments to keep the country moving forward.
Packer's essay is a must read. I've opted to pull some of the anecdotes and quotes and offer some thoughts as well as add some supplementary evidence.
Michael Bennet, a freshman Democrat from Colorado, said, “Sit and watch us for seven days—just watch the floor. You know what you’ll see happening? Nothing. When I’m in the chair, I sit there thinking, I wonder what they’re doing in China right now?”
While academics and even Chinese officials are divided over whether there is such a thing as a "China model," the debate is more over whether the China model can be copied and transferred to other developing nations rather than over whether a Chinese path to development exists. Clearly, one does. The main advantage of the Chinese model is that being highly centralized decisions are made quickly and the resources committed.
To take one example, just look at the Chinese development of its rail and high speed rail transportation infrastructure. Beginning in 2005, China embarked on the second largest public works program in history, surpassed only by the Eisenhower-era Interstate Highway System in size. China plans to spend more than $1 trillion (or more than our $787 billion fiscal stimulus and as measure of comparison the Obama Administration has committed $8 billion in ARRA funds for high speed rail plus another $5 billion over 5 years) on expanding its railway network from 78,000 km today to 110,000 km in 2012 and 120,000 km in 2020 with 13,000 km being high speed rail. The Beijing-Hong Kong line would be the largest single element of the system, at more than 1,000 miles long. A comparable line in the US would run from Boston to Miami. And as our transportation infrastructure crumbles, Republican Senators would prefer to give tax cuts to the wealthy and than to reinvest in America. The monies are there but the will is lacking.
While senators are in Washington, their days are scheduled in fifteen-minute intervals: staff meetings, interviews, visits from lobbyists and home-state groups, caucus lunches, committee hearings, briefing books, floor votes, fund-raisers. Each senator sits on three or four committees and even more subcommittees, most of which meet during the same morning hours, which helps explain why committee tables are often nearly empty, and why senators drifting into a hearing can barely sustain a coherent line of questioning. All this activity is crammed into a three-day week, for it’s an unwritten rule of the modern Senate that votes are almost never scheduled for Mondays or Fridays, which allows senators to spend four days away from the capital. Senators now, unlike those of several decades ago, often keep their families in their home states, where they return most weekends, even if it’s to Alaska or Idaho—a concession to endless fund-raising, and to the populist anti-Washington mood of recent years. (When Newt Gingrich became Speaker of the House, in 1995, he told new Republican members not to move their families to the capital.) Tom Daschle, the former Democratic leader, said, “When we scheduled votes, the only day where we could be absolutely certain we had all one hundred senators there was Wednesday afternoon.”
Nothing dominates the life of a senator more than raising money. Tom Harkin, the Iowa Democrat, said, “Of any free time you have, I would say fifty per cent, maybe even more,” is spent on fund-raising. In addition to financing their own campaigns, senators participate at least once a week in the Power Hour, during which they make obligatory calls on behalf of the Party (in the Democrats’ case, from a three-story town house across Constitution Avenue from the Senate office buildings, since they’re barred from using their own offices to raise money). Lamar Alexander, the Tennessee Republican, insisted that the donations are never sufficient to actually buy a vote, but he added, “It sucks up time that a senator ought to be spending getting to know other senators, working on issues.”
Generally the candidate who spends the most, wins. In the 2008 cycle, only Kay R. Hagan and Jeanne Shaheen managed to win their races while being outspent. In the North Carolina race, Elizabeth Dole spent $15.7 million to Hagan's $6.0 million while Sununu and Shaheen each spent $5.9 million (Sununu spent $13,000 more than Shaheen). In 2004, the average winning Senate campaign spent $11.9 million while in 2002 and 2000, the average winning Senate campaign spent $8.2 million and $10.4 million respectively. Just going back to 1988, the average winning Senate campaign spent a mere $2.5 million. So as the costs of winning and retaining a seat rise, more time is spent fund-raising and less time is spent paying attention to the needs of the nation.
Robert A. Caro, in “Master of the Senate,” the third volume of his life of Lyndon Johnson, argues that after the Civil War the Senate was captured by wealthy and sectional interests, ending a more high-minded age when Daniel Webster, Henry Clay, and John C. Calhoun engaged in brilliant debate. Aside from spasms of legislation at the start of the Presidencies of Woodrow Wilson and Franklin Roosevelt, Caro writes, the Senate remained controlled by an alliance of Southern racists and Republican corporate shills, and was “the dam against which the waves of social reform dashed themselves in vain—the chief obstructive force in the federal government.” By the fifties, the Senate had become far more conservative than the public. And not just conservative: William S. White, in his 1956 book “Citadel,” called the Senate “to a most peculiar degree, a Southern Institution . . . growing at the heart of this ostensibly national assembly” and “the only place in the country where the South did not lose the war.”
The cultural South, defined as the old Confederacy plus West Virginia, Kentucky and Oklahoma (the Census Bureau also uses these 14 states plus Maryland and Delaware to define the South), is represented by 28 Senators of which 19 are Republicans and nine are Democrats. But even irrespective of party, Senators from the South tend more conservative than their counterparts from other regions and are more likely to vote as a block.
In part, there is a historical rational for this. The South, a region under the control of a plantation aristocracy and the most insular of the American landscape, was the dominant political force in the period between the founding of the Republic and the Civil War. In the 72 years between 1789 and 1861, the sons of the South accounted for ten of 16 Presidents, 24 of the 36 Speakers of the House, and 20 of the 35 Supreme Court Justices. The Civil War followed by Republican Reconstruction, however, put an end to the South's political dominance of national affairs relegating the South to a political and economic backwater.
In the popularly apportioned House, the South lagged becoming an increasingly smaller share of the population as immigration swelled the North and Mid-West. In 1900, for example, the South was apportioned 104 seats of out the 356 that then constituted the House of Representatives. In the 70 years between 1861 and 1931, just two of the 17 Speakers of the House hailed from the South.
And having dominated the Executive Branch prior to 1850, from the end of Andrew Johnson's Presidency, one courtesy of an assassin's bullet, in 1869 until Lyndon Johnson became President in 1963 upon Kennedy's assassination, no Southerner would sit in the White House though it should be noted that Woodrow Wilson was born in Virginia but elected from New Jersey.
Of the nine Supreme Court Chief Justices post the Civil War, only two, Edward Douglass White and Fred M. Vinson, hailed from the South. Of the 65 Associate Judges that have been appointed since 1862, only 15 were Southerners and one of these was Noah H. Swayne who though born in Virginia left the Commonwealth to practice law in Ohio because he was opposed to slavery. Among the other 14 is Louis D. Brandeis who was born in Louisville, Kentucky but who spent most of his adult life in Massachusetts and New York.
Shut out of these corridors to power, the South, in its own mind an aggrieved minority, sought to defend its perceived rights in the institution that Founding Fathers established to act as a check on the will of the majority. As John Micklethwait and Adrian Wooldridge noted in their seminal overview of conservative power in the United States, The Right Nation, the fact that the South was so "solidly Democratic meant that the region's senators could turn themselves into 'human institutions with southern accents,' reelected term after term and, thanks to the chamber's rigid seniority, appointed to the chairmanships of the most important committees." Indeed when a young Lyndon Johnson first arrived in the Senate in 1949, twelve of the Senate's 13 committees were chaired by Southerners. By the early part of the 20th century, the Senate had become the vehicle for conservative Democratic Southerners to thwart northern reformist liberalism and mid-western progressive populism.
And while the South has swung from a Democratic province into a largely Republican lake as a result of the Civil Rights movement, the region remains the bedrock of American conservatism and nativism. The South may have switched party loyalties but its allegiance to conservatism remains unyielding and given that region controls over a quarter of the Senate, its retrograde influence on policy remains intact.
One morning in April, I visited Harry McPherson, the former L.B.J. aide, at the offices of the legal and lobbying firm D. L. A. Piper, in downtown Washington. McPherson, who is eighty, had on his desk the firm’s spiral-bound directory for the 111th Congress. I asked him who, in Johnsonian terms, were the whales of the current Senate. McPherson ran his finger down the list of senators. He did it again. “I’m trying here, looking for a remote descendant. Judas Priest, look at this.” He was stumped. “Well, I see some good people, I see some people who are going to get coalitions together over time.” He put the directory aside. “I’m just having the damnedest time.”
Down the hall from McPherson’s office was that of Mel Martinez, a former Republican senator from Florida; he was hired last year, two weeks after resigning his Senate seat without completing his first term. (He has since moved on to JPMorgan Chase.) William Cohen, the former Maine senator and Secretary of Defense, has an office downstairs. Tom Daschle works at D. L. A. Piper; his predecessor as Democratic leader, George Mitchell, was the firm’s chairman, until President Obama appointed him to be his Middle East envoy. One feature of the diminished U.S. senator is the ease with which he moves from legislating to lobbying. Between 1998 and 2004, half the senators who left office became lobbyists. In 2007, Trent Lott, a Republican leader in the Senate less than a year into his fourth term, abruptly resigned and formed a lobbying firm with former Senator John Breaux, just a few weeks before a new law took effect requiring a two-year waiting period between serving and lobbying.
I'm not the first to say this but lobbying has become the fourth branch of government. A Center for Public Integrity analysis of Senate lobbying disclosure forms shows that more than 1,750 companies and organizations hired about 4,525 lobbyists — eight for each member of Congress — to influence health reform bills in 2009. Businesses and organizations that lobbied on health reform alone spent more than $1.2 billion on their overall lobby efforts. The grand total spent on lobbying across all issues was $3.47 billion. And despite the lingering economic malaise, most lobbying firms are weathering the recession just fine, with 19 of Washington's top 25 firms reporting revenue growth so far this year.
Dollars represent just one side of the growth of our fourth branch. In 1968, there were just 62 lobbyists. Now according to the Center for Responsive Politics, there are 11,916 registered lobbyists though that number doesn't include those "on a break" or the support staff. Add these and the number swells to over 30,000, a number that has grown by 50 percent in the last decade alone.
In Britain and other European democracies, legislators rely on a Weberian civil service to provide impartial advice and technical expertise but in the United States that role is increasingly being provided by the industry association groups, think tanks and the professional lobbying firms. But it is not just "impartial advice and technical expertise" that is being provided, entire sweeping legislative tracts, such as the Bush-Cheney Energy Plan or the recently passed financial overhaul, are written in part or in toto by the lobbyist juggernaut.
Nor can our esteemed legislators think for themselves. As the New York Times reported in November 2009, statements entered in the Congressional Record or delivered to the press - talking points - by more than a dozen lawmakers were ghostwritten, in whole or in part, by Washington lobbyists working for Genentech, one of the world’s largest biotechnology companies.
Then there's the thesis of Nicholas Confessore, the former editor of the Washington Monthly, that argues emerging Republican machine on K Street is the mirror image of that built by the Democratic Party under Franklin D. Roosevelt and his successors only outsourced to the private sector. Instead of the old Democratic formula that doled out largesse to loyal constituencies, the GOP uses its connections to K Street to redistribute wealth via juicy government contracts to those sectors that support, i.e. finance, GOP candidates. As Confessore noted "by co-opting K Street, conservatives can do the next best thing--convert public programs like Medicare into a form of private political spoils."
Or what to make of the revolving door that is the career of Liz Fowler? In less than a decade she has gone from Chief Counsel for the Senate Finance Committee in charge of health and entitlement issue to Vice President for Public Policy and External Affairs at the health insurance giant WellPoint to oversee the firm's lobbying and other government-influencing activities back to top aide to Democratic Senator Max Baucus, the Senate Finance Committee Chairman who would oversaw the drafting of the healthcare bill and who is now joining the Obama Administration to help implement the new law. In Liz Fowler, we have a one person crew of legislative aide, corporatist lobbyist, crafter of legislation and now regulator. But whose interests does she serve?
“The Senate, by its nature, is a place where consensus reigns and personal relationships are paramount,” Lamar Alexander said. “And that’s not changed.” Which is exactly the problem: it’s a self-governing body that depends on the reasonableness of its members to function. Sarah Binder, a congressional scholar at George Washington University, said, “To have a chamber that rules by unanimous consent—it’s nutty! Especially when you’ve got Jim Bunning to please.”
Just imagine trying to please Rand Paul, Sharron Angle or Marco Rubio.
Many of the Senate’s antique rules and precedents have been warped beyond recognition by the modern pressures of partisanship. The hold, for example, was a courtesy extended to senators in the days of horse travel, when they needed time to get back to Washington and read a bill or question an appointee before casting their vote. Sarah Binder, who co-authored a book on the filibuster, calls the procedure a historical accident: in 1806, the Senate got rid of a little-used rule that allowed the “previous question” to be called to a vote. Suddenly, there was no inherent limit on debate, and by the eighteen-thirties senators had begun taking advantage of this loophole, derailing the proceedings by getting up and talking until their voice, legs, or bladder gave out. (The word “filibuster” comes from vrijbuiter—old Dutch for “looter.”)
The political scientist Barbara Sinclair, a specialist on Congress at UCLA, has done the research of the use of filibuster. In the 1960s, she finds, "extended-debate-related problems" -- threatened or actual filibusters -- affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.
That's percentage, here are the numbers: when Republicans were a Senate minority in 1991-1992, there were 59 cloture filings. When President Clinton took office, with Republicans remaining the minority in the Senate, that number shot up to 80 in 1993-1994. When Democrats reclaimed the Senate majority in the 2006 midterm elections, cloture filings shot up from 68 in 2005-2006 to a record 139 in 2007-2008. The Senate filed 214 cloture votes, the votes to break a filibuster, between 2007 and 2010. That's more than it held between 1919 and 1976. Clearly, reform of the filibuster is an imperative but we should have no illusions because, in truth, the filibuster is only part of the problem.
The tally of cloture votes reflects only a small fraction of senatorial obstruction. Three hundred and forty-five bills passed by the House have been prevented from even coming up for debate in the Senate. “Why?” Steny Hoyer, the outraged Democratic Majority Leader of the House, asked me. “Because they do not do their business in a way that facilitates noncontroversial things. Thankfully, the House of Representatives is not becoming the Senate.” Last week, six House Democrats expressed their displeasure with the upper chamber by staging a sit-in of sorts on the Senate floor.
Seventy-six nominees for judgeships and executive posts have been approved by committees but, because of blocks, haven’t come up for a vote in the full Senate, leaving courtrooms idle and jobs unfilled across the upper levels of the Obama Administration. (The Democrats also practiced the art of blocking nominees during the Bush Administration.) There’s often no objection to the individual being blocked: after an eight-month hold, Martha Johnson, nominated to run the General Services Administration, was confirmed 96–0. On an issue like health-care reform, when the objection was substantive, Republicans ransacked Riddick’s “Senate Procedure” for every conceivable way to delay a debate and vote. Judd Gregg even sent a memo on stalling tactics to his Republican colleagues. Tom Coburn demanded the reading aloud of an entire seven-hundred-and-sixty-seven-page amendment proposed by Bernie Sanders, the Vermont socialist; Senate clerks, working in half-hour shifts, were three hours into the chore when Sanders withdrew the amendment in frustration.
How does one solve the problem of calculated premeditated obstructionism for the sake of political gain? As Greg Sargent writes this week "no matter how much Democrats scream about GOP obstructionism, the jury is still out on whether Republicans will be blamed for its consequences." And Sargent rightly concludes, "it appears that Republicans have calculated that the failure of Democratic legislation, and Democratic griping about the Republican role in blocking such legislation, will feed a sense that government is broken and/or has failed to deliver."
"The GOP," Sargent finds, "is betting that the failure and the griping will reflect badly on the ruling party."
Unfortunately, it is not just the Democrats that will fail. It is the nation and it almost entirely due to our dysfunctional Senate and then largely due to a radical and recalcitrant GOP that is willing to sink the ship of state on the rocks of an ideology better suited to pastoral, pre-industrial life of the early nineteenth century than to the harsh complex realities that we face in the early twenty-first.