Transcript Why is Congress the way it is? & What can we do about it?

Why is Congress the way it is?
&
What can we do about it?
Educating for Citizenship Conference
Center for Education in Law and
Democracy
December 6, 2013
Revised 12.6.13
A new poll …Congress has again slipped
…now polling lower than painful medical
procedures …. The survey...showed Congress
with a mere 9 percent favorability rating… 85
percent…negative.... Asked for their
preference between Congress and lice, the
microscopic insects prevail 67-19%. Ditto
colonoscopies (58-31%), root canals (65-32%),
and being stuck in traffic (56-34%).
The Hill, Jan. 2013
Some context
• A nation, ever growing in size and complexity
• What do we expect of government and
politics?: nonviolent resolution of society’s
public needs and problems
• the Preamble: “. . . in Order to form a more
perfect Union, establish Justice, insure
domestic Tranquility . . .”
• And what from Congress?
• Perils of [my] over-simplification, exaggeration
“[Rep. Zach] Space [D-OH] said one man
left a message on his office's answering
machine saying: ‘You'd better get your flak
jacket because I'm coming to blow you
away.’ The Dover Democrat said open
hostility has increased during just the 40
months he has spent in Congress.”
“A cloud over the Capitol?” The Columbus Dispatch Sunday, April 25, 2010
Republicans say and Democrats privately
acknowledge, Reid will have to play the
“populist card” and paint the GOP as the
defender of special interests while the majority
leader and his Democratic colleagues are
protecting average Americans. . . .“I think
everyone thinks he is just gaming this thing
politically and is a lot more interested in having
issues right now rather than having solutions,”
South Dakota Sen. John Thune . . .
Politico, April 29, 2010
Core Principles
As stated by Jefferson in the Declaration: all
created equal; governments instituted to protect
inalienable rights; government legitimacy from
the consent of the governed.
The Constitution elaborated: the consent of the
governed was to be exercised through
representative institutions (Federalist 10) and
(in part to protect rights) those institutions were
to be constrained by a system of checks and
balances (Federalist 51).
Political Demographics
Add to the mix, the political demography of
the US in 2013 – split pretty much down the
middle.
A prescription for gridlock and dysfunction?
The Civility Moral
The only way our representative institutions can
keep faith with the founding documents is by
acting out of the mutual respect that flows from
our principle of equality. As a practical matter,
given the constitutional architecture that of our
national government, the only way anything can
get done is with a view to the necessity of
compromise. With the political complexion of
the country, that requires some bipartisan
cooperation.
Civility 2
Out of this flows an imperative for civility and
comity. If compromise is a political and
constitutional necessity, and if mutual respect is
a moral requirement, then developing a politics
of civility is essential.
Not just a nicety – but a necessity!
How do we get there?
The business of legislatures
• Recognizing what requires public attention
• Resolving differences – compromises and
deals
• “Currency” of compromise? minimum level
of trust
• Prerequisites to trust? Sufficient personal
relationships, socialization
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Basic human relations
Elements of the problem
• Congress as community – not
interconnectedness
• Political geography
• Media segmentation
• Campaign finance, elections
• Ethics, integrity, polling
• The citizenry & civic literacy
Elements of the problem
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But, what about the Constitution?
Separation of powers
Balance [conflict] of powers
Bicameralism: filibusterism
Founders’ skepticism of national power vs.
need for national power (ref: Articles of
Confederation)
House = Senate ?
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Not exactly
But relevant
Spreading infection
As Sam Rayburn counseled
Lyndon Johnson
• My bias as a House alum
Congress as community – not
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The old days: 1974 election; moving to DC
The Hill as a community
Socialization – literal, figurative
Benefits: time together
trust
Nowadays: 2012 election night
Change in US society & Cong’l families –
Bowling Alone, self-isolation, social
capital, less courteous society
• Costs: H/R schedule – no time together
“It used to be that we'd disagree on substance, then
you'd go out and have a beer and say, ‘You're still a
great guy,’” he [Rep. John Boccieri (D-OH)] said.
“There’s very little of that.” [Rep. Steve] Austria [R-OH]
and Boccieri have participated in bipartisan meetings
of freshmen members, but those now might be falling
apart. “There were some comments made to me by
some senior people on our side of the aisle: ‘Ah, that'll
last a year, and then you're gonna be as partisan as
we are,’” Austria said, noting that signs indicate the
prediction could come true.
“A cloud over the Capitol?” The Columbus Dispatch Sunday, April 25, 2010
Political geography
• Reapportionment & Redistricting – census
• Effects of computing power & data bases
• Political predictability, irresistible
temptations
• Who votes in primaries – what’s left for
November – turnout, vicious cycle
• Consequences: aggravated partisanship –
Congressional leaders reflect their more
ardent Members
• Strong Democratic districts are 10 to 20 percentage points more Democratic than the country as a whole.
• Lean Democratic districts are 5 to 10 percentage points more Democratic than the country as a whole.
• Swing districts are within five percentage points of the national popular vote margin.
• Lean Republican districts are 5 to 10 percentage points more Republican than the country as a whole.
• Strong Republican districts are 10 to 20 percentage points more Republican than the country as a whole.
• Landslide Republican districts are at least 20 percentage points more Republican than the country as a whole.
Media segmentation
• Nation missing a common experience of
public affairs
• Walter Cronkite, come back? Or Jennings?
• Newspapers, decline in readership
• Cable TV and Internet news – suited to
yourself!
• Pander for ratings – exaggerate the
differences – shouting sells
• Now, let’s get those guys to cooperate
Campaign finance, elections
• Campaigns: paid staff >> volunteers (♀) –
stake in the district (not)
• Raising money for self
• Raising money for others (leadership PACs)
• Citizens United
• Does money follow votes, or vice versa? –
perceptions; see integrity, below
• Demonization – see media, above – and
then let’s work together
Ethics, integrity, polling
• The seductive lure of public opinion in the
media age
• The job description? Burke; Federalist 10
• I’m there to represent you – pandering to a
susceptible electorate
• Posturing; “tape is rolling” – alert to being
recorded, or “being” authentic
• Henry Hyde: “If there’s not an issue for
which you’re willing to lose an election . . .”
The citizenry & civic literacy
• Democracy is complex: learned
behavior
• What’s happened to K-12 education?
• ABA survey: ±55% know 3 branches
• Passivity – their fault
• We’re all so busy
• Prague March 1977 - E Berlin April 1990
Remedies?
• Congress as community: stay in DC more;
change the weekly schedule; renew
Bipartisan Retreats; foreign congressional
travel is good (not junkets)
• Political geography: elevate competitiveness
as goal of CDs; revise VRA re minority
districts;
perhaps a 10% shift
• Media segmentation: tough problem; expose
yourself to the other side; “fairness” doctrine?
Remedies? continued
• Campaign finance, elections: public financing
(but Citizens United); open/no primaries
[California Prop 14 ends party primaries]
automatic runoff if none>50%
• Ethics, integrity, polling: understanding the
role – Edmund Burke; OCE
• The citizenry & civic literacy: it’s not just about
them; educate for democracy; it’s not a
spectator sport; YOUR GOOD WORK!
Prescriptions for comity in government
by Tom Daschle and Trent Lott
Washington Post, 11/26/13
[M]embers of Congress spend less and less time in
[DC]….fewer opportunities to get to know one another.
Less familiarity leads to less trust, which leads to less
cooperation, which often leads to less consensus and,
ultimately, fewer accomplishments….
First, Congress should return to a five-day workweek ….
Second, joint caucuses … once a month….
Third, end the Senate practice of “holds”….
Fourth, initiate weekly meetings [between the president
and leaders of Congress]…quarterly…at Camp David.
Experts Pan Lott-Daschle Gridlock
Proposals
Real Clear Politics, Adam O’Neal 11/29/13
“Most of the people on the ground in
Congress right now are tired of … outsiders
telling them what to do,” warned [Harvard
government professor] Skocpol. “Daschle and
Lott are still liked and respected by many of
their former colleagues, but they must seem
irrelevant to a lot of people.”
1971 Earth Day poster written and illustrated by Walt Kelly
Bonus Round?: TABOR lawsuit
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Legal theory of the case
Key issues
What the case is not about
Procedural history
What lies ahead – 4 years?
Clients and co-counsel
http://taborcase.org
http://video.rmpbs.org/video/2365105064/.
Republican Form of Government
• Meaning of RFG is key Q “on the
merits”
• Where to look for legal authority – no
court precedents
• So, what did the Drafters say
• Madison Fed. 10: RFG means government
by elected representatives not direct or
“pure” democracy
• Madison Fed. 39: RFG includes two parts
– power derived from the people and
“administered . . . by persons holding
office . . . for a limited period.”
• Madison Fed. 51: “In republican
government, the legislative authority
necessarily predominates.”
• Madison Fed. 57: the “elective mode of
obtaining rulers” is characteristic of RFG
• Madison Fed. 43: looks to then-existing forms of
state government and, in defense of the
Guarantee Clause [“GC”], observes, “who can
say what experiments may be produced by the
caprice of particular states….”
• Hamilton Fed. 71: “ When…the interests of the
people are at variance with their inclinations, it is
the duty of the persons whom they have
appointed to be the guardians of those interests,
to withstand the temporary delusion, in order to
give them time and opportunity for more …
sedate reflection.”
• Hamilton Fed. 30: “The conclusion is, that
there must be interwoven, in the frame of
the government, a general power of
taxation….Money is … the vital principle of
the body politic … which sustains its life
and motion, and enables it to perform its
most essential functions…. A complete
power, therefore, to procure a regular and
adequate supply of it, as far as the
resources of the community will permit,
may be regarded as an indispensable
ingredient in every constitution.” [Emphasis added.]
Back to: Theory of the case
Article IV sec. 4 (GC) and EA:
require Colorado to maintain RFG =
legislature with tax power
TABOR: strips legislature of tax power
QED: TABOR violates GC and EA
Questions?
Suggestions?
All Good Wishes for the Holidays
&
A Peaceful, Prosperous and Civic-Minded
New Year