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«What’s wrong with Congress? Everyone seems to have an answer, and most of them consist of a long list of complaints: Congress is uncivil, it is too ...»

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What’s wrong with Congress? Everyone seems to have an answer, and most

of them consist of a long list of complaints: Congress is uncivil, it is too

partisan, it is gridlocked, and it produces earmarks – “bridges to nowhere” – but no broad legislation in the public interest. Among expert commentators such as Thomas Mann and Norman Ornstein, the criticisms also include more detailed charges.1 For example, they suggest the House of Representatives has become a majority party steamroller in which the minority is excluded from decision-making,2 and the majority flagrantly manipulates the rules for a partisan advantage.3 Commentators also argue that because the Senate now requires sixty votes – a supermajority – to do almost anything, this heightened requirement contributes mightily to gridlock.4 Finally, Mann and Ornstein criticize Congress for failing to perform its constitutionally-specified role as a coequal branch – checking and balancing executive power.5 ∗ Professor Emerita of Political Science, UCLA.


IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK 7, 15 (2006) (suggesting “the post-2000 House of Representatives looks more like a House of Commons in a parliamentary system than a House of Representatives in a presidential system,” and that Congress looks “like an arm of the Second Branch, a supine, reactive body more eager to submit to presidential directives than to assert its own prerogatives”).

2 See id. at 6 (explaining how the Medicare bill was “marked up” in the House Ways and Means Committee in a partisan fashion, and minority Democrats were excluded from the process and most of the deliberations).

3 See id. at 1.

4 See Barbara Sinclair, The “60-Vote Senate”: Strategies, Process, and Outcomes, in U.S. SENATE EXCEPTIONALISM 242, 260 (Bruce I. Oppenheimer ed., 2002) [hereinafter Sinclair, The “60-Vote Senate”] (explaining that because of Senate rules, such as the filibuster, one Senator can pose a significant barrier to legislation unless sixty Senators vote to end debate, and therefore the filibuster). Others, notably Sanford Levinson, deplore the very makeup of the Senate, pointing out its highly unrepresentative character. See SANFORD


(AND HOW WE THE PEOPLE CAN CORRECT IT) 49-62 (2006) (explaining how the Senate, by electing equal numbers from every state, is unrepresentative and undemocratic).

5 See MANN & ORNSTEIN, supra note 1, at 16-17 (“Congress was placed at the center, not the periphery, of a strong federal government and empowered with democratic legitimacy and institutional authority.... Sadly, today it is down

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There is some truth to all of these claims. Not too long ago, a senior House Democrat called a Republican colleague a “little wimp.”6 A different Republican on the House floor charged, “Like a moth to a flame, Democrats can’t help themselves when it comes to denigrating and demonizing Christians.”7 A Speaker of the House held what was supposed to be a fifteenminute vote open for almost three hours while he and his leadership colleagues twisted arms to pass a bill.8 According to one count, there were thirty-six filibusters in the 109th Congress (2005-06) and fifty-two in the just-ended 110th Congress.9 Finally, many informed observers would agree that, from 2001 through 2006, Congress did not do a very good job of overseeing and checking the executive.10 Does this mean that Congress is “an increasingly dysfunctional and ineffective institution”? I argue no. First, I take issue with “increasingly.” I contend Congress is more capable now than it was in the past of producing legislation that responds to reasonably strong popular demands. As I discuss briefly below, the House is now organized to function in ways that make this so.11 The strengthening and internal homogenization of the political parties – that is, the much maligned partisan polarization – has made possible the development of a stronger and more activist party leadership that allows the majority to work its will.12 The strict gatekeeping at the committee level that

6 Alan K. Ota, Liriel Higa & Siobhan Hughes, Fracas in Ways and Means Overshadows

Approval of Pension Overhaul Measure, CQ WKLY., July 19, 2003, at 1822, 1822 (“Pete Stark, D-Calif.... sa[id] to [Congressman Scott] McInnis, ‘Oh, you think you are big enough to make me, you little wimp?’”).

7 Mike Allen, GOP Congressman Calls Democrats Anti-Christian; Remarks in Floor Debate Stir Protest, WASH. POST, June 21, 2005, at A4.

8 MANN & ORNSTEIN, supra note 1, at 1-2 (describing the Prescription Drug Bill vote on November 23, 2003 which started at 3:00 a.m. and closed at 5:53 a.m. even though the rules called for a fifteen minute vote).

9 See Barbara Sinclair, The New World of U.S. Senators, in CONGRESS RECONSIDERED 1, 7 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 2009).

10 See Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2320 (2006) (“Congress has not passed legislation to denounce these presidential actions.... [H]ere we come to a subtle change in the legal landscape with broad ramifications: the demise of the congressional checking function.”); Patricia Wald & Neil Kinkopf, Putting Separation of Powers into Practice: Reflections on Senator Schumer’s Essay, 1 HARV. L. & POL’Y REV. 31, 68-69 (2007) (“Congress has enacted sweeping legislation that largely authorizes the President to do what he has been doing.”).

See infra notes 49-52 and accompanying text.



2009] IT’S A DEMOCRATIC LEGISLATURE 389 used to characterize Congress is long gone.13 To be sure, the Senate continues to be a roadblock to decisive action; but House action can put pressure on the Senate to act, especially if it is backed by public opinion.

Second, Congress will almost always seem “dysfunctional” to some because most of us inevitably evaluate its performance, at least in part, in terms of our own notions of what is good public policy – that is, through an ideological lens. Thus, one of the major charges against Congress has been gridlock.14 Yet it is hard to argue that the Congresses of 2001-06 were characterized by gridlock. Those Congresses produced some highly significant legislation – two huge tax cut bills in 200115 and 2003,16 the Prescription Drug/Medicare bill in 2003,17 and all the post-9/11 legislation.18 Many of us may think much of this was bad legislation, but it was not the product of an ineffectual Congress.

More basically, I disagree with the conclusion that Congress is a “dysfunctional and ineffective institution,” because we need to remember that the job we ask Congress to do is really, really hard. We need to evaluate Congress in terms that take account of this difficulty, especially if our evaluations are going to be the basis of reform recommendations. What do we ask Congress to do? First, pass legislation that is both responsible – that is, effective in handling the problem at issue – and responsive to majority sentiment. Second, we ask Congress to do so through a legislative process that is deliberative and inclusive on the one hand, and expeditious and decisive on the other. Third, we ask Congress to do it in public.

Obviously, Congress will never succeed completely – there are some inherent contradictions and some tough trade-offs. We cannot have it all.

Over its history, Congress has struck different balances among these values, as I discuss briefly below. Moreover, we can learn a good deal about the character of these trade-offs from analyzing how the chambers have changed over time. My argument is that the current balance in the House is better than it has been throughout most of the post-World War II period because it 13 See STEVEN SMITH, CALL TO ORDER 46 (1989) (explaining that by 1980 “[a] relatively closed, committee-oriented system had become a more open, floor-oriented system for much legislation”).

14 See, e.g., Adam Clymer, The Gridlock Congress, N.Y. TIMES, Oct. 11, 1992, at A1.

15 Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, 115 Stat. 38.

16 Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub. L. No. 108-27, 117 Stat.


17 Medicare Prescription Drug, Improvement, and Modernization Act, Pub. L. No. 108Stat. 2066 (2003).

18 See, e.g., Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116 Stat. 594; Aviation and Transportation Security Act, Pub. L.

No. 107-71, 115 Stat. 597 (2001); USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified in scattered sections of the U.S.C.); Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001).

390 BOSTON UNIVERSITY LAW REVIEW [Vol. 89:387 provides accountability and reasonable expeditiousness. But, as I also point out, the current balance entails costs as well.19 The Congress of the 1950s, often of late held up as a paragon of bipartisan harmony and productivity, was, in fact, a body controlled by independent and often conservative committee chairs, chosen on the basis of seniority and therefore not accountable to anyone.20 True, decision-making was largely bipartisan, with senior committee Democrats and Republicans, who had forged close relationships over many years, working together.21 The system gave members incentives and opportunities to develop expertise in their committees’ areas of expertise – an important asset for a body with limited expert staff.

Furthermore, some major legislation was produced: the bill establishing the federal highway system, for example.22 This, however, was also a system that tended to exclude junior members – and often liberals – from meaningful participation.23 It had no means of holding key decision-makers accountable to the membership,24 consequently blocking much important legislation – aid to education and major civil rights legislation, for example – for which majorities certainly or probably existed.25 The majority Democratic Party’s peculiar composition underlays this “committee government” congressional regime. The party emerged out of the New Deal realignment as a coalition of increasingly conservative southerners and increasingly liberal northerners.26 Bolstered by their greater seniority resulting from their region’s lack of party competition, southerners dominated congressional positions of influence and used these positions to block legislation that their northern colleagues wanted.27 When the balance between the two factions started to shift decisively toward the North beginning with the 1958 election, reform forces spearheaded by northern liberals began to reshape decision-making in both chambers.28 19 I hasten to add that these are value judgments.

20 See RICHARD BOLLING, HOUSE OUT OF ORDER 79-80, 108-09 (1965) (describing a bipartisan conservative group that is generally able to command a clear majority, led by chairmen with seniority who are able to force younger members to align with them).

21 See id. at 80 (explaining the bipartisan conservative alliance as “an understandable consequence of convictions common among southern Democrats and certain Republicans, mostly from the Midwest”).

22 National Interstate and Defense Highways Act, Pub. L. No. 84-627, 70 Stat. 374 (1956).


24 See id.

25 See, e.g., BOLLING, supra note 20, at 179 (describing the process of passing a civil rights bill in 1956-57, which included delays in the Judiciary Committee and a hostile Rules Committee who used many dilatory strategies).

26 See SINCLAIR, MAJORITY LEADERSHIP, supra note 23, at 3.

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