A Congress Worthy Of Deference?

National Journal

As one who has preached for years that presidents and Supreme Court justices should show more deference to Congress, I must admit that Congress seems less and less worthy of it. Might presidential and judicial despotism — if enlightened — be the lesser of evils?

Last week, for example, I criticized President Obama for failing to seek detailed legislation on detention and interrogation of terrorism suspects. This brought a reminder from an administration official that any effort to get a responsible detention bill past congressional Republicans — who seem far more eager to demagogue the president’s plan to close Guantanamo than to grapple with the hard issues — would probably be doomed.

A fair point. I still think that Obama should give it a try. But I would not bet on a constructive Republican response.


Harry Reid’s "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.


And when Obama is faulted for letting Democratic potentates on the Hill festoon the stimulus and health care bills with special-interest favors, I wonder: Could he have forced the potentates to be responsible had he tried?

On another front, I have faulted the Supreme Court’s conservatives for seeking to stretch First Amendment law to the breaking point to gut campaign spending laws. But those laws are so pockmarked with congressional efforts to stifle critics and other incumbent-protection games as to command little respect.

Anyone who has seen a few congressional hearings and a few Supreme Court arguments has to notice that the more democratic branch often seems a sorry circus by comparison with the analytical rigor and intellectual seriousness of the unelected justices, liberal and conservative alike.

Besides, the Senate is not very democratic even on paper. California has about 70 times Wyoming’s population, but each state has two senators. The 21 smallest states, representing 12 percent of the nation’s population, have 42 senators — one more than the number needed to block any controversial legislation.

The Senate’s semiparalysis-by-filibuster is one of the reasons that congressional insiders have told reporters not to expect any serious legislation this year on such urgent problems as global warming and immigration. It also explains why there have for decades been such debilitating delays in confirming presidential nominees.

Even so, few Congress-watchers — other than partisans of the party in power — would see the House’s workings as a big improvement on the Senate’s. The "people’s House" is so polarized between hard-right Republicans and hard-left Democrats that it is unrepresentative of the largely centrist electorate.

Nor does the legislative process call to mind "government of the people, by the people, for the people." Take the Democratic health care legislation that has preoccupied Washington. Whether the bills should live or die, it’s hard to trust the process by which it has been slapped together. Highlights include cynical payoffs to get to 60 votes and backroom deals that mock Obama’s multiple campaign promises to "do all these negotiations on C-SPAN so the American people will be able to watch."

Republicans share the blame. After doing precious little to solve our biggest problems when they were in power, they have greeted Democratic initiatives with an uncompromising obstructionism.

The calcification of our system that my colleague Jonathan Rauch called "Demosclerosis" in the title of a 1994 book plagues the executive branch, courts, states, and localities, too.

California seems especially broken, with its crushing deficits; exodus of employers, jobs, and residents; overpaid public employees — some of whose union contracts allow retirement at 50 with 90 percent of their salary for life; and legislative districts that virtually never change party.

In short, although the United States has "a vital and self-renewing culture that attracts the world’s talent," as James Fallows contends in the current issue of The Atlantic, National Journal‘s sister publication, "our government is old and broken and dysfunctional, and may even be beyond repair."

Fallows details in "How America Can Rise Again" the increasing inability of our governments at all levels to focus on "issues beyond the immediate news cycle, … an increasing gap between the real challenges and opportunities of the time and our attention, resources, and best efforts [and] a political system that seems to be constantly consumed with trivial things."

An utterly trivial gaffe in 2008 by Senate Majority Leader Harry Reid, D-Nev., for example, brought an orgy of media hype and Republican grandstanding after it was revealed last week. Reid had said privately during the 2008 campaign that Obama’s race could help him because he was "light-skinned" and had "no Negro dialect, unless he wanted to have one."

Now, Reid has a penchant for making genuinely offensive comments, such as likening Republican opponents of the Democratic health care bills to 19th-century opponents of abolition. But his "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.

So, shame on the Republicans. Their desire to avenge Democratic demonization of then-Majority Leader Trent Lott in 2002 — for an offensive (if benignly intended) expression of nostalgia for the Jim Crow South — was no excuse for so cynically playing the race card against Reid.

But does anybody doubt that the same Democrats who have defended Reid would be clamoring for his head had he been a Republican?

Meanwhile, the media have ignored a genuinely revealing example of racial politics gone mad: a proposal by the quasi-official Governance Council of Berkeley (Calif.) High School to eliminate science labs and the five instructors who teach them because few black or Hispanic students sign up for them, as one member explained to the East Bay Express. This is an extreme example of an underreported problem — efforts to close racial achievement gaps by shifting resources away from high achievers of all races — that damages high-achieving minorities, American competitiveness, and ultimately low achievers as well. The media could hardly be less interested.

What is to be done about the seeming inability of our governments at all levels — not to mention the media — to meet the challenges we face? Fallows has no big reforms to propose. Any effort to amend the Constitution, he notes, would be strangled by special interests. And a full-scale constitutional convention would bog down in ideological battles over abortion, the teaching of evolution, and the like, and perhaps do more harm than good.

Instead, Fallows argues, "our only sane choice is to muddle through" by pressing governments to look to the long term and make the gigantic public investments that are needed to renew our crumbling infrastructure, fund scientific research, and drive our economy forward, as the government did decades ago with the space program, the Internet, and the Human Genome Project.

Worthy goals — but with no underlying principle beyond wishful thinking for making them happen. Governmental dysfunction may be more deeply rooted than Fallows allows in broad cultural and legal trends of the past four or five decades.

Special-interest groups, ranging from unionized public employees demanding tenure regardless of performance to anti-tax crusaders who want government services without paying for them, have since the 1960s pressed governments and courts to elevate their "rights" — that is, their parochial self-interest — over the public good.

Over time, this has created a "jungle of law, growing denser every year, that has submerged individual responsibility to do what makes sense under a deluge of rules and rights, and paradoxically undermined everyone’s freedom," says Philip Howard, a prolific author and critic of legal and regulatory excess, whose day job is practicing corporate law in New York City.

"Individual responsibility should be the principle by which America reforms its public institutions," argues Howard, whose latest book is Life Without Lawyers: Restoring Responsibility in America. "Schools are out of control because teachers fear taking responsibility for discipline lest they be accused of violating disorderly students’ due process rights. Health care costs are out of control because neither patients nor providers are financially responsible for prudence in their use of resources, and doctors squander billions on defensive medicine. Lawsuits are out of control because judges won’t take responsibility for preventing abuse of the system. Americans increasingly feel frustrated and powerless because law has corroded the hierarchy of responsibility needed for anything to work. A free society descends into gridlock. Look around."

These legal-cultural dysfunctions would be obstacles to national renewal regardless of any institutional reforms such as making the Senate more democratic — which aren’t going to happen in any event. Meanwhile, the more Congress shirks its own responsibility to grapple seriously with hard issues, the more the executive and judicial branches will fill the vacuum.

But if we, the people, can focus more on getting big things done for the good of the nation and less on legalistic second-guessing of those accused (often wrongly) of making honest mistakes, we might just get the government we deserve.

This article appeared in the Saturday, January 16, 2010 edition of National Journal.