Is Congress the broken Branch?

The House passed over 200 critical bills in 2021. Thanks to the Senate filibuster, none of them became law. 


At the time of the passage of healthcare legislation in 2010, and again during the series of confrontations between the Republican-controlled House and the president from 2011 onwards, the inability to produce a solution to obvious and serious problems meant that the accusation was frequently heard that 'Washington is broken'. (A book by Thomas E. Mann and Norman J. Ornstein's recent academic study of Congress was titled 'The Broken Branch'.)

How sustainable is this charge? In defense of Congress, we should remember that there are permanent institutional features of Congress that mean decision-making is difficult and that 'limited government' was what the Founding Fathers intended. Difficulty in passing legislation is the inevitable consequence of a process whereby legislation needs to be approved by two equal chambers, which may be under the control of different parties, as well as the complexity of the legislative procedure within each and the multiple veto points it creates. The separation of powers means that congressmen and senators stand for re-election on their record of service to their own constituents, and have only a limited incentive to take a broader view of the national interest; members of Congress need not worry unduly that the approval rating of the institution as a whole is under 20% if their own rating with their own constituents is enough to secure re-election. The Constitution also created deliberately undemocratic features, in particular,  the unrepresentative nature of the Senate; less than a quarter of the population elects the 41 senators from the 21 least populous states, and these 41 senators have an effective veto over any legislation they choose to block. This counter-majoritarian feature was designed to counter the possibility of the 'tyranny of the majority'. In other words Congress is not part of a Parliamentary system and should not be judged by the same crtieria. However, from a left wing perspective ‘limited government’ is a clear sign of Congress failing to function as states themselves have a poor record of helping its citizens or protecting minorities as seen from Arizona SB 1070.

Added to these permanent features are a number of recent developments. Trust in Congress has not been enhanced, for example, by the steady stream of scandals salacious revelations concerning members of Congress, but the most significant is the increased partisanship within Congress, which has made partisan wrangling and the deadlock it produces Washington's default condition.

Increased partisanship is the product of a number of factors:

·      The parties have become more ideologically distinct since the 1980s, as the Republican Party became more consistently conservative and the Democratic Party more consistently liberal.

·    In the House, partisan gerrymandering has led to the creation of safe one-party districts, which has rendered many representatives only vulnerable to a primary challenge. Since primary voters are the party faithful, and are more ideologically motivated than the general population, the challenge will invariably come from the further extremes of the party, and to forestall this Republican representatives have to move to the right and Democratic representatives to the left.

·      Ideological interest groups on both the right and the left actively campaign against representatives and senators not deemed to be sufficiently in sympathy with their values. In the 2012 primaries, Richard Lugar, who had been a senator for Indiana for 36 years, was defeated by the state treasurer Richard Mourdock, who was supported by both the Club for Growth and FreedomWorks. Karl Rove's American Cross Roads and Citizens United have become Super PACs backing more conservative candidates

·     The growth of a partisan media, such as Fox News on the right and MSNBC on the left, and the proliferation of the blogosphere, help generate partisan pressure.

·      The rising cost of elections and the constant need to fundraise, even for senators with 6-year election cycles, means that less time is spent in Washington, with decreased opportunities for personal relationships with members of Congress from the opposition party to develop. This is seen as a decline in civility. Because party control of Congress has become so keenly contested, parties now require six-figure contributions from members of Congress to go towards campaigning in key districts and states, strengthening the need to fundraise further. In an article in Time in 2010, former representative Dan Glickman argued that the need to raise money reduces any incentive for bipartisanship; problems left unsolved can be fundraising boons, since wealthy interests are forced to keep 'working the Hill' if issues are left unresolved, pouring more and more money into campaign coffers.

The consequences of increased partisanship have been as follows:

·    An increase in 'party votes' and confrontation between the parties have become the norm. The Recovery and Investment Act in 2009 and the Affordable Care Act which finally passed in 2010 were unanimously opposed by the Republican Party in the House and by nearly the entire party in the Senate at all their stages. The Hastert Rule is evidence of party polarisation.

·      The use of the filibuster in the Senate has become almost routine, such that a majority of 60 is required for any faintly contentious legislation. Obama's appointments were routinely delayed using the filibuster -forcing Harry Reid to adopt the 'nuclear option 'Nuclear Option

·      Congressional procedure has been abused to ensure partisan victories; for example, roll call votes on legislation on the House floor, which usually last 15 minutes, have been extended to 1-3 hours while the hunt goes on for the votes to pass it, and the roll call vote for the passage of Medicare reform in 2003 was reportedly the longest in congressional history.

·      The oversight function has become dysfunctional and driven by partisan loyalty. e.g 2012 Senate Select Committee investigation into Benghazi incident- really an attack on Hilary Clinton. As were House Committee hearings over her use of private emails.

·      A breakdown in civility, epitomised by the shout of 'you lie' at the president during his 2009 address to both houses of Congress. and 2020 Trump's State of the Union.

October 3rd 2023 -Rep. Kevin McCarthy (R-Calif.) was ousted as House speaker after failing to withstand a rebellion among far-right dissidents, as the House voted for the first time in history to remove its leader and entered a period of unpredictability and paralysis. McCarthy later announced he would not seek the position again, setting up an expected intraparty battle for the position second in line to the presidency. 

This has never happened before  in the more-than-240-year history of the House of Representatives. An increasingly radicalized Republican faction that, emboldened since the rise of the tea party, has repeatedly shut down the government and led the country to the brink of a default on its debt. The increased polarization and radicalism in (mostly Republican)  party politics has undermined the traditionally powerful position of the Speaker and given further evidence for the disfunction of Congress.

Is Politics in the US more uncivil?

September 2009 lObama says illegal immigrants won't be insured. Rep Joe Wilson yells "liar"  Pelosi's reaction indicates how unusual this is.

2020 Deference and respect for the president have further declined - Trump's State of the Union message is met with protests from female representatives dressed in white, Trump snubs Pelosi's handshake and she rips up his speech.

 A poll shows that a majority of Americans say incivility is a major problem. And an NPR/PBS NewsHour/Marist poll says that the country's civility crisis is deepening and that a majority of Americans fear it will lead to violence. 

Why America Re-elects A Congress It Hates

Washington isn't broken

There is  evidence that the case condemning 'Washington' has been overstated. Legislation which can attract broad sustained support will pass, for example the Welfare Reform Bill initiated by the Republican leadership and signed by President Clinton in 1996, the No Child Left Behind Bill of 2003, which was the initiative of President Bush and co-sponsored by Ted Kennedy, and the bank bailout bill at the end of the Bush presidency. The 111 Congress in the first 2 years of the Obama administration was described on Bloomberg as being '...probably the most productive session of Congress since at least the 1960s'; it saw the passage of a major stimulus package, healthcare reform and reform of the financial services industry. (Dodd-Franks Bill) The legislation to raise the debt ceiling was passed in August 2011 with truly bipartisan majorities, the 'extremes' in both parties voting against and the centrists in both voting for — the archetypal product of congressional negotiation and compromise. (However, this contributed to the fall of John Boehner) In 2020 Congress passed two Covid Relief Bills - admittedly after much delay.

It could also be argued that issues such as immigration reform and environmental policy are policy areas whereby it is inevitable that there will be disagreements given the stark ideological differences between the Republican and Democrats and the lack of consensus in America over these issues. Congress simply reflects the divided nature of American society. This is sometimes described as the 'Culture wars'. Demographic changes have created two Americas which rarely mix and do not understand each other. (The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart)  by Bill Bishop

Party unity has certainly increased but the limits of party control have been observable, for example, when twice in the recent past Speaker Boehner has had to abandon the 'Hastert rule' — over the votes on aid for states affected by Hurricane Sandy in 2012 and to raise top rate income tax rates in 2013 as part of the deal to resolve the 'fiscal cliff'.Budget Deal 2015

At its core, the congressional policy-making process frequently includes open hearings, public debate, and vigorous contention among a host of fractious groups. Though a small number of congressional hearings are closed, usually because executive branch witnesses claim national security concerns, the great majority of committee and subcommittee hearings are open to the public and to the press. Many hearings involve a parade of dozens, even hundreds, of witnesses from corporations, interest groups, and the administration. Even concerned citizens arrive on Capitol Hill to make their views known. It is unusual for any representative of any group, however small, to be denied an opportunity to testify. In the contemporary Congress, floor debate is not an empty exercise. Especially in the Senate, it can be lengthy and rancorous. Floor amendments are offered in both houses and often win acceptance. In short, despite its many imperfections, the U.S. Congress is a democratic decision-making body. 

Finally, some commentators, such as Charles Krauthammer in the Washington Post, have argued that a failure of Obama's leadership is the root of the problems that have afflicted Congress since 2009.  Critics argue that stark opposition to Obamacare from the GOP came as a consequence of failure in strategy and not an inherent problem in Congress. President Obama could have compromised more or waited longer to find out people’s opinions of Obamacare, hence why Republicans have said that the reason they opposed Obamacare was because they had a mandate from their constituents to oppose any increases in taxation and secure a reduction in the government deficit. However, liberal critics of Obama criticised what they saw as too much compromise.

The same criticism of leadership failure might be levelled at Trump particularly over delays to the second Covid relief bill and Trump's lack of interest in climate change.

Criticism of Congress is not new. The complaint that America had become 'ungovernable' was heard in the Carter years. There are periods when Congress and the President can work together effectively- particularly in times of crisis e.g during the New Deal 1930s, WW2, the Civil Rights Reforms, Reagan's response to the end of the Cold War or after 9/11, the stimulus bill passed under Bush and Obama after the financial crisis of 2008 and the Covid Relief Bills in 2020, but there will also be periods when Congress will be obstructive. 

The tradition of disparagement as well as the congressional behavior, actual or alleged, that has brought it on is well-known. The themes go way back. For example, Tocqueville wrote: “When one enters the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly.”1 Mark Twain famously quipped: “There is no distinctly native American criminal class except Congress”; and “Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”