The Accursed 113th Congress: Are Our Democratic Institutions Broken?

Posted by – November 18, 2013

ac·cursed
1: being under or as if under a curse
2: damnable

Source: Merriam-Webster’s dictionary – accursed

I am probably one of the few bloggers who would notice our worst. Congress. ever. is also the 113th Congress, and feel a gut feeling that the correlation isn’t really… entirely coincidental.  Too many horrendous events have happened to me and those I know on the 13th day, especially Friday the 13th, and though I know on the intellectual level that correlation doesn’t imply causation—a number can’t damage you, and dates on the calendar are more subjective…or more Wibbly Wobbly Timey Wimey than you might initially realize, for example the Jewish calendar may tell you it’s the 5th of Tishrei instead of September 13th—nonetheless I have some mild triskaidekaphobia, fear of the number 13… or at least some discomfort and anxiety around thirteen.   Or, as Alejandra said in another context, not meaning 13-itself, “numbers are bad enough… odd numbers are shady mtherfkers.” 

Prior Congresses (Congrii?) have been notably awful: there’s the last session—the 112th Congress—which brought us to the brink of a sovereign default crisis in 2011 which led to Standard & Poor’s downgrading the credit rating of the United States government for the first time, and we lost international credibility big time, and so on.  Of course there was the infamous 80th Congress, which President Truman ran against as “the Do Nothing Congress,” though it was a marathon of productivity compared to the 112th and 113th Congress.  We would much prefer “the Do Nothing Congress” to the current situation.  All the available polling data bears that out. And the 113th Congress is even worse than the 112th by every available yardstick.

Confidence in Congress has never been lower.

Put another way, when Public Policy Polling did a survey during the shameful government shutdown last month, asking registered voters questions like “what do you have a higher opinion of: Congress or hemorrhoids?” hemorrhoids won 53% to 31%… people have a higher opinion of dog poop than Congress 47% to 40% and when asked about zombies vs. Congress, people have a higher opinion of zombies 43% to 37%… at least you know where zombies stand…well, shamble.  [Public Policy Polling full results PDF]

The 113th Congress is also on track to be the least productive in history, demonstrating a shocking inability to pass legislation, even ceremonial laws like congratulating the winner of the World Series and the like…

Ceremonial vs. Substantive legislation in recent Congrii. Source: Washington Post’s “The Fix”

The inability to pass legislation has become so bad during the 113th Congress, the federal government is unable to fund itself, meaning funding only getting done in half-hearted three month CRs (Continuing Resolution), creating dysfunction in everything from scientific research to military procurement.  We’re on a three month CR right now; the weeks of government shutdown lowered expectations so much, it’s seen as a success.  The legislative machinery of our republic is going grinda-grinda-grinda, grinding nearly to a halt, and the dysfunction is mostly due to choices made by the House leadership.

Now, to the real thrust of this post: the decay of our democratic institutions and the weakening of American constitutional values occurring at present.  For example, the mechanism, or underpinning, enabling law that made the government shutdown possible was House Resolution 368, which banned anyone bringing legislation to the floor to re-open the government except the House Majority Leader or his designate, a new, innovative abuse of parliamentary rules and certainly extra-constitutional—not in the constitution, as the parties are not mentioned in the constitution, nevermind a party’s “Majority Leader”—and against the spirit of constitutional law if not its letter.
H. Res. 368 was snuck-in at 1am as the government shutdown began October 1st. Maryland’s Chris Van Hollen, whose DC suburb-district is made-up heavily of federal employees and was disproportionately harmed by the government shutdown, proposed that the House vote on the Senate bill to re-open the government in order to force the Speaker-designate to block him under H. Res. 368, so he could question H. Res. 368 in public; the video clip of Van Hollen’s effort became the first “parliamentary inquiry” to go viral on Facebook and Twitter.  Ironically, the Majority Leader given the sole power to re-open the federal government, and kept it shut down for over two weeks, was Eric Cantor, whose DC-suburb district has broad swaths of its working population depending on federal contracts and paychecks, and was nearly as disproportionately harmed as Van Hollen’s district.

Underpinning all that, how we find ourselves with appropriations stalled and shutdowns possible in the first place, is the Hastert rule.  The Hastert rule, which really should be called the Gingrich rule, as it was first added under Newt Gingrich’s speakership, requires majority support among the Republicans before the speaker will bring legislation to the House floor for a vote.  As the constitution envisions legislation passing the House with simple majorities, the Hastert rule to require legislation either passes with majority-Republican votes or never gets considered, is unconstitutional.  Similar to the situation in the Senate, where the constitution requires supermajorities in cases of ratifying treaties, expelling a Senator, removing a president, not for routine legislation like the 60-vote supermajority needed for passage of most everything, since most everything is now held up by filibusters, this Hastert rule violates the spirit if not the letter of the constitution,  The filibuster certainly isn’t mentioned in the constitution, and the routine blocking of run-of-the-mill legislation and nominations is an innovation not seen until recently.

In the House of Representatives, the Hastert rule has meant nothing gets voted on until the Speaker and/or Majority Leader “have the votes” of the majority of the Republican caucus.  This has meant a vocal minority of the Republicans can grind the legislative

Male elephants tusk-jousting for dominance. Photo by EPA/DAI KUROKAWA

machinery to a halt; the elephant factions have to battle it out and come to a resolution before anything can happen.  This explains the historically low number of bills voted on and passed, the inability to appropriate funds for federal departments, etc. And because of the rapidly changing dynamics within the GOP, which, in my recent post discussing the shifts in conservatism I describe as “revolutionary flux,” the Hastert rule is freshly problematic, not only because of its inevitable enabling of an extremist minority shutting down the government, but because of Republican unity on positions so radical they risk extinction in future presidential elections if the Speaker had held fast on the Hastert rule.  For example, an extension of the Violence Against Women Act (VAWA) had the majority of the Republicans united in opposition, but the national GOP didn’t want to head into the next elections having removed assistance for battered wives, so Speaker Boehner allowed a vote; VAWA passed with only 38% of the Republicans in the House voting yes.  Similarly a “danger zone” for national disgrace, Speaker Boehner had to bring the Hurricane Sandy disaster relief bill to the floor despite harsh opposition, even drawing no votes from Republicans representing damaged New Jersey districts; it passed with a healthy majority of 241 votes, but only 49 Republican votes, a mere 21% of the majority.

I don’t usually quote others at great length like this, but the blog Gravitas: A Voice for Civics has an excellent explainer on the unconstitutionality of the Hastert rule, explaining it much better than I can:

For example, right now there is an initial impetus to oppose the death penalty between what we call liberal or progressive politicians and libertarians. Usually, these two groups of politicians are known for their antagonism toward each others’ positions, but here is one area in which they agree. Now, I don’t know whether there are enough liberals and libertarians to form a majority, but there is the possibility that if not today, maybe eventually. This potential is exactly what the Founding Fathers foresaw and I believe hoped for. But the Hastert Rule makes such an eventuality almost impossible.

Why? The Hastert Rule calls for limiting the bills that come before the House for a vote to those that are supported by a “majority of the majority.” Let me explain. The Constitution calls on each chamber of Congress to form its own rules. The formal rules of the House state that the Speaker has the role of placing on the voting agenda those bills he or she feels should be considered by the membership. So, if the Speaker is against a bill, it will not come up for a vote unless 218 members sign a “discharge” petition – a very unlikely development. In effect, this role gives the Speaker a great deal of power. An informal rule – one not voted on by the membership – states that the Speaker will not call up a bill that is not supported by a majority of the members who make up the majority party in the House – presently, the Republican members. This, in effect, can give as little as one quarter of the members veto power over any considered policy option – a far cry from the rule of the many. That is what the Hastert Rule allows. The Democrats have never implemented the Hastert Rule when they held the majority, but Republicans have, although there have been a few occasions when the present Speaker has brought up a very limited number of bills that didn’t have a majority of the majority’s support. The Hastert Rule is named after a former Speaker, Dennis Hastert, but it was in effect under a previous Speaker to Hastert, Newt Gingrich.

Whatever its origins, the rule counters a constitutionally conceived quality: the possibility and, hopefully, the likelihood that Congress, particularly in the House, would have rolling coalitions that form over particular issues and policy considerations. These coalitions would form over one area, dissolve, and then other coalitions would form over other considerations. In each, there would be a different collection of members. This reflects a more congregational atmosphere in our Congress and would give meaning to its name: a congress, not a parliament. The Hastert Rule belies this entire conception and, as such, it is un-constitutional with a small “c.”

Read the post in its entirety: AN UN(c)ONSTITUTIONAL RULE

Perhaps we need a new word for things that violate the intended system, instead of “against the spirit of the constitution,” or “un-constitutional with a small ‘c,'” we could call it counter-constitutional, meaning it runs counter to the framers’ intent for our constitutional system of government.

People have a tendency to chuckle at the EPIC FAIL of our

from an early Bob Dylan music video, in which he captions the song with signs that he flips through for every word of the lyrics

from an early Bob Dylan music video, in which he captions the song with signs that he flips through for every word of the lyrics

system: you know, “LOL Congress is less popular than dog poo,” or “haha, we make Europe’s coalition parliaments that collapse every year look functional.”  But I’ve written so much about the dysfunction and the erosion of constitutional values in hopes people will notice the problems.  I want blogging to save us.

The weakening of constitutional values seems to be worsening not only in our legislative branch but in disregard and non-enforcement of the Fourth Amendment leading to a case of the police unnecessarily forcing a colonoscopy on a guy they thought was hiding drugs in his butt (he wasn’t).  The president suspending sections of the Affordable Care Act by executive fiat isn’t exactly a sign of constitutional health either: the law blog The Volokh Conspiracy points out the order’s lack of constitutionality.
Our country desperately needs its legislative branch, the broken branch, fixed.  We badly need to get the budgetary and lawmaking machinery running at normal speeds again, break the cycle of budgeting by emergency CRs; we need an end to austerity and a return to normalcy.  There’s such a yearning for a return to normalcy, you even heard the House GOP calling for a return to “regular order” in legislative procedure and budgeting in the first half of 2013 (though that rhetoric seemed long-forgotten by gov’t shutdown zero-hour October 1st).
I wouldn’t be surprised if, in the 2014 midterm elections to seat the 114th Congress and in the presidential primaries in late 2015 and early 2016, candidates on all sides run on variations of the “return to normalcy” theme.   I expect to see at least one presidential campaign reminiscent of Warren G. Harding‘s strategy in his 1920 run; Harding’s main campaign slogan was a “return to normalcy,” tapping into the American public’s weariness of the economic upheaval (and unimaginable carnage) of Woodrow Wilson’s presidencies and World War I.  Harding won in a landslide.

For Congress, normalcy would look like a string of routine appropriations bills passing and fully funding federal departments and programs.  Appropriation bills have become more “rarity” than “routine,” a situation that desperately needs reversing.
The accursed 113th Congress has visited upon us so many evils, the most obvious being the government shutdown, but an even longer-lasting evil is the distortion of expectations to the point that the vicious cycle of three-month budgets via emergency CRs is seen as regular, and anything resembling a healthy appropriations process is seen as remote, a distant thing on the horizon, at the verge of impossibility.  The 113th Congress’ dysfunction feels even more egregious because more voters voted Democratic party for Congress in the 2012 Congressional elections than voted Republican, yet redistricting allowed the GOP to keep a healthy majority in the House; unlike the awful 113th, the 112th Congress had a definite democratical mandate for obstruction and/or reversal of the incumbent’s policies behind a sizable GOP victory.
Hopefully the departure of the unluckiest 113th Congress following the 2014 midterm elections, a year hence, will mean a breath of fresh air and full funding for federal obligations for a full fiscal year.

If you don’t remember anything else from this post, please absorb this: for better or worse, the House and Senate are our democratic institutions, meaning the democratically-elected, collaborative, “people’s house(s),” and when democratic institutions are weak, the authoritarian parts of our system—the increasingly “unitary” executive, an enforcement branch run amuck without Congressional oversight, etc.—inevitably become stronger.  Despite the absence of a savvy demagogue-executive who could strip Congress of power, it seems the Congress and “the suicide caucus” could still self-destruct, de facto leaving the U.S. with a unitary executive by process of elimination (only the executive still functioning). We have to have healthy, functioning democratic institutions lest “separation of powers” whittle away, and a much more unitary/much less representative system emerges as a fait accompli, justified as a necessity in the face of a Congress that isn’t able to even keep the lights on.  Our democratic institutions MUST regain credibility.

Keep bloggering on.

Nick

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