Three reasons Congress is broken

By Robert G. Kaiser May 23, 2013

Robert G. Kaiser is an associate editor of The Washington Post and the author of “Act of Congress: How America’s Essential Institution Works, and How It Doesn’t,” published this month.

Why is Congress so helpless and so hopeless? We’ve heard all the fashionable explanations: partisan gridlock; special interests and the impact of their campaign contributions; gerrymandered House districts; an excessively partisan president; a benighted Republican Party dominated by tea party radicals.

But the real cause is deeper: Congress is a human institution with a distinct culture, and the modern version of that culture is hostile to creative problem-solving. If we have a mediocre Congress — even when it manages to accomplish something — it is because of the people in it and the culture they have created.

The men and women who now run for Congress have special features. Most of them are much wealthier than their constituents. Surprisingly few have strong policy interests or experience. Most are willing to spend a day or two or three each week asking strangers for money on the telephone, a demeaning but obligatory exercise. Most have internalized an ethical code that allows them to solicit campaign contributions from people directly affected by legislation they vote on. This is not rare or even unusual — it’s standard.

I’ve witnessed the transformation of congressional culture over the past decades from a variety of perches at The Washington Post, including two tours of duty as a reporter on Capitol Hill. I’ve long been intrigued, and often baffled, by our legislative branch. Then in 2009, I got lucky. Rep. Barney Frank (D-Mass.) and Sen. Chris Dodd (D-Conn.) agreed to let me watch them produce what became the Dodd-Frank bill, which reordered the regulation of America’s financial sector. They allowed their staffs to talk to me regularly, on the record, over 19 months. I was able to gather a reporter’s favorite commodity: the inside skinny. And I saw the culture of the modern Congress at work.

The events I witnessed were not exactly typical, because they produced a consequential result. This was due to special circumstances: the large Democratic majorities in the 111th Congress (2009-2011), elected in the midst of the worst financial crisis since the Great Depression, and the effective leadership of two experienced legislators who held key chairmanships: Dodd at the Senate Banking Committee and Frank at the House Financial Services Committee.

Nevertheless, I saw how Congress actively undermines the best of legislative practices. Consider three aspects of that congressional culture that affected the course of Dodd-Frank — and are even more influential today, when Congress appears deadlocked on virtually all fronts.

Politics trumps policy

The crash of 2008 posed an obvious policy question: How could regulation of the financial sector be improved to prevent similar catastrophes? Most of the answers that eventually made their way into the Dodd-Frank bill were provided not by Congress but by the Obama administration.

Frank immediately accepted the bill the administration wrote as the appropriate framework for reform. It changed somewhat as it moved through the House, but not much. Dodd did offer some new ideas: for example, unifying the four existing bank regulators into a single new agency. But no other senator embraced Dodd’s plan, so he soon abandoned it and accepted the administration’s approach. Overall, the big policy questions were mostly settled by the administration.

Why? Because large, bipartisan majorities in both chambers never understood the arcane financial issues at the heart of regulatory reform, nor tried to master the subject. Theoretically, the lawmakers had an opportunity to wield enormous power and transform the biggest sector of the American economy. But very few were interested. “This notion that members of Congress are power-hungry — absolutely the opposite,” Frank observed at one point. “Most members like to duck tough issues.”

The politics of reform, by contrast, was a congressional preoccupation from the outset. Beginning in early 2009, Frank was talking about political implications with House Speaker Nancy Pelosi and White House chief of staff Rahm Emanuel, who both thought a strong bill would help Democrats. Emanuel repeatedly told Frank that White House polls showed strong public support for reform. When pressure from hometown bankers and financial industry lobbyists weakened some Democrats’ resolve in the summer of 2009, Frank warned them to hang tough. “If you kill this bill now, you’ll get creamed,” he told the Democrats on his committee. “You’ll get primary opponents. It will be ‘the people against the banks,’ and ‘the Democrats caved in again.’ ”

Politics mattered for Dodd, too, but in a different way. He believed that a big bill of this kind was unlikely to be enacted without strong bipartisan support, which he pursued for months. He discouraged Democrats who wanted to make regulatory reform a partisan issue. But he also refused to vitiate the bill to satisfy Republicans who wanted a lot less regulation than he did. Ultimately, he got a smidgen of bipartisanship — just enough to get the bill through the Senate. Three Republican senators voted for cloture, to cut off debate and allow a final vote; four Republicans voted for the final bill.

Politics — and ideology — dominated GOP attitudes toward reform. In the House, Republicans ruled out any cooperation with Frank and the administration from the outset. House Republicans produced an alternative plan to demonstrate that they could agree on some response to the crash, but their proposal had no teeth and was never seen as anything more than a public relations exercise. Senate Republicans, meanwhile, never offered an alternative of their own.

Republican leaders in both houses used financial reform as a fundraising tool. Mitch McConnell (Ky.), the Senate Republican leader, and John Cornyn (Tex.), chairman of the National Republican Senatorial Committee, traveled to Wall Street to persuade — with considerable success — financiers to give more to Republicans. John Boehner (Ohio), the Republican leader of the House, similarly sought to attract Wall Street money by opposing the administration’s regulatory proposals. Republicans, including McConnell, repeatedly attacked the Dodd-Frank bill for provisions it did not contain and kept doing so when their errors were pointed out.

Staffers do most of the work

Ted Kennedy said as much in his 2009 memoir. “Ninety-five percent of the nitty-gritty work of drafting [bills] and even negotiating [their final form] is now done by staff,” he wrote, marking “an enormous shift of responsibility over the past forty or fifty years.”

In the case of Dodd-Frank, 95 percent might understate staff members’ share of the work. After Dodd and Frank themselves, the two most influential people in shaping the legislation were unknown to most Washington cognescenti: Amy Friend, chief counsel of the Senate Banking Committee, and Jeanne Roslanowick, staff director of House Financial Services Committee. They and their staffs were responsible for every aspect of producing the final legislation: writing provisions (most based on Obama administration drafts), vetting the contents with interest groups of all kinds, looking for glitches or omissions, and hearing out the recommendations and complaints of hundreds of experts, lobbyists and affected parties.

Very few lawmakers left fingerprints on the legislation. Most of them voted for or against Dodd-Frank — nearly all along party lines — without remotely understanding its provisions.

Staffers can’t vote, but lawmakers can’t legislate without the work done by staff. In some circumstances this feature of the modern Congress can help rather than hinder the House and Senate, because staff members tend to believe in compromise when elected officials often do not. But a compromise reached by staff won’t work on its own; lawmakers have to vote for it.

Issues, even the big ones, are no longer really debated

In the “world’s greatest deliberative body,” there is little deliberation. The Senate Banking Committee never held a proper markup of the Dodd-Frank legislation, and did not debate its provisions or consider their impact. The House markup was ritualistic and formalized; it did little to alter the bill, with one interesting exception — an amendment exempting auto dealers from the purview of the new consumer financial protection agency.

The final law has a number of radical provisions that were not debated in either body. One example: It created a Financial Stability Oversight Council consisting of the heads of many regulatory agencies and chaired by the Treasury secretary. It can instruct regulators to force firms to abandon practices it considers too risky and can even shut down a firm it deems a threat to the stability of the financial system. If, one fine day, the council uses that unprecedented power, the consequences could be dramatic. But this was never really debated during the legislative process that produced the bill.

Floor debates in both houses consisted primarily of political posturing. Lawmakers did not engage in a serious philosophical discussion about the proper role of regulation in the financial sector or in a practical discussion of how regulation might make the system safer. Instead, the two parties swapped slogans and catchwords. During the floor debates on final passage in the House, the galleries were never full and often empty.

Frank and Dodd were both remarkable leaders, nurturing support, solving tactical problems and, in Dodd’s case, finding just enough Republican allies to bring home a bill. They were old-school legislators who loved the process and knew how to make it work.

Both have now retired from Congress. Those filling their roles have neither their brainpower nor their political skill. Too few senior lawmakers in Congress have comparable talents. Bright, serious people who understand policy still do run for and serve in the House and the Senate, but they are a small minority. Service in Congress is losing its allure.

It is difficult to imagine that the House and Senate giants of the recent past would run for those jobs today. Would Everett McKinley Dirksen enjoy begging for money? Would Howard Baker have put up with it? Or Philip Hart or Paul Douglas? Peter Rodino or Lee Hamilton? Would any of them enjoy the life of a modern member of Congress, working three- or four-day weeks in Washington and flying home every weekend, flitting from subject to subject and mastering none? I doubt it.

The culture of Congress is the problem. It took more than three decades for this culture to evolve, and it is now deeply entrenched. That is why the current Congress is unable to function. It is revealing that the only issue now offering any hope for compromise is immigration — because many Republicans fear the political consequences of failing to act. Once again, politics trumps policy.

This dysfunctional culture won’t be altered in an election cycle or two. Because of it, our Congress is broken.