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No matter who the new Speaker is, real dysfunction lies deeper

HUFFINGTON POST, 12 / 06 / 2017

Retirement. Boehner’s no-brainer. He welcomed Pope Francis, and then made his announcement even before His Holiness had left the country. The Speaker was just sick and tired of navigating the political minefield that is the U.S. House of Representatives. And who could blame him.


Now everyone expects the page to turn. But as it does, we see plenty of hand-wringing about who will grab the gavel as the next Speaker of the House. Oh, the suspense. Will it be House Majority Leader Kevin McCarthy (R-CA)? How far right might he swing the wheel if he slides into the driver’s seat? Will U.S. Rep Jason Chaffetz (R-UT), or an even more conservative member of the House Freedom Caucus, pull off an upset for the Speaker’s chair after McCarthy’s national gaffe on Benghazi? Will the government shut down again? So much palace intrigue in The People’s House. Super-nerds are consumed this week with the drama that is set to unfold in the capital. I’m one of them.

But how much does it really matter in the grand scheme? Not much. Because the individuals operating within our ailing system – the persons and their parties – aren’t nearly as important as the underlying causes of congressional failure: the rules. It is time to pull the lens into sharper focus. It’s time to get real.

We can stipulate up front that nearly all of us are disappointed with the entire legislative branch. Approval of Congress in recent years has swooned to record lows – under both split- and single-party control. So the hard-edged partisans can point fingers all they want, but the problem is far more complex than the tired old knee-jerk blame game.

Last week McCarthy made the following proclamation about what the House would look like if he assumes command: “What you’re going to see is a conservative Speaker that takes a conservative Congress that puts a strategy to fight and win.” But Boehner’s voting record is not only more conservative than former Speakers Newt Gingrich and Dennis Hastert, it is also to the right of McCarthy’s!

If McCarthy were to somehow lead his caucus by actually negotiating less with the Democratic president than did Boehner, just how much worse can it get? Under Boehner, we had a near-government shutdown in 2011 that led to the first financial downgrade in U.S. history, and then an actual shutdown in 2013. The 112th and 113th Congresses under Boehner’s leadership were the two least productive legislative sessions since we started recording the annual number of laws passed 80 years ago. In 2014 and 2015, Congress received its lowest public confidence ratings – 7 and 8 percent – since Gallup started asking the question back in 1973.

And Congress just averted yet another shutdown – at least until December. The likely reason that a short-term measure to keep the government going actually passed was that in his impending retirement, Boehner felt free enough to put a resolution on the floor that would get through with a bipartisan vote. Free enough to take the incoming fire from his far right members who do not want to see compromise – and special interests who track his every move. Imagine, the final reward of a 25-year career in elective office ends up being the leverage to keep the federal government open for another 72 days.

The question gets asked repeatedly: Why can’t our elected representatives pass common-sense legislation that the majority of Americans favor? Why are they unable to improve a deficient immigration system, the high costs of college, decaying infrastructure, disproportionately expensive drug prices, a rigged tax code – it’s a long list.

The gun debate renewed once again by the school shooting in Roseburg, Oregon last week provides a good frame to demonstrate why the rules in Congress can often matter far more than the people actually casting votes in the chambers.

After the shooting, retired 33-year ATF Special Agent Jim Cavanaugh made this observation on MSNBC:

“America used to respond. Our legislators used to respond and say this is wrong here, we can tighten up, we can plug a gap, we can do something here that will change things. And what we’ve seen now is years and years and years of just no change. No even moderate change to improve things a little bit… Responsible gun control laws that don’t hurt people’s Constitutional rights but do help us to stop people from obtaining guns illegally or plotting a murder.”

Cavanaugh’s right. We passed the National Firearms Act in 1934 to regulate machine guns. After the assassinations of Martin Luther King, Jr. and the Kennedys in the ‘60s we passed the 1968 Gun Control Act. The shooting of President Reagan and his press secretary James Brady was the impetus for the eventual passage of the Brady Handgun Violence Prevention Act. After the Patrick Purdy schoolyard shooting in Stockton, California, assault weapons were banned in 1994. But we don’t see these corrections anymore. Why? Examining the last serious attempt in Washington is instructive.

In 2013, America was shaken by the mass shooting in Newtown, Connecticut. Twenty-year-old Adam Lanza, another killer with a history of mental illness, walked into the Sandy Hook Elementary School fully armed and took the lives of six adults and 20 children. Even with all of the gun violence we see in the U.S., the killing of so many innocent children in this tragedy brought an even greater level of attention to the gun issue.

It also created enough political will for Congress to at least introduce new legislation. After one Senate bill failed (it would have mandated criminal background checks on all gun sales between private parties), a more modest amendment was proposed with bipartisan co-sponsors, U.S. Senators Joe Manchin (D-WV) and Pat Toomey (R-PA). Manchin explained on Fox News that the measure would merely be a “criminal and mental background check strictly at gun shows and online sales” and that “if you’re a law abiding gun owner, you’ll love this bill.”

Americans agreed to a great extent with Manchin and Toomey. Two weeks before the vote, a CBS/New York Times poll indicated that 90 percent of Americans supported expanded background checks. Moreover, the same poll showed that 85 percent of households with a gun-owning member of the NRA supported requiring background checks for private sales at gun shows. One comparison of polls sarcastically indicated background checks were more popular than baseball, apple pie, and kittens.

On April 17, 2013, the amendment failed in the Senate. Whether one is for or against the proposed law, the point here is to ask why. If American gun owners (85 percent) were in favor of the amendment, why would our government not respond accordingly? Some believe it is because the NRA and Gun Owners of America are more successful at getting their members to actually voice their opinions to lawmakers than those supporting gun control measures. But research released by the Pew Center a month after the vote did not track with that claim. Pew did find another factor, however, stating that “While nearly as many gun control supporters as gun rights supporters report contacting a public official about gun policy in the past six months, more gun rights advocates have contributed money to organizations that take positions on gun policy (12 percent versus 3 percent of gun control supporters).” Ah, the money.

Between the years 2000 and 2014, gun rights groups spent more than $80 million on federal campaigns – with $46 million of it spent by those independent groups given free rein after the Citizens United decision. More than $18 million alone was spent during the election cycle preceding Newtown. Of the forty-six senators who voted against the amendment, forty-three of them had received money from gun rights groups since the year 2000 (gun rights groups outspent gun control groups 28-1 in 2000-2010). Despite such strong circumstantial evidence of influence, that does not necessarily constitute a direct causal link. In fact, four Democrats who voted against the background checks were likely unswayed by money, as they had received some of the smallest amounts from the NRA.

But influence comes not only from the NRA money that flows into lawmakers’ coffers. It also comes from the truckloads of cash that loom over the incumbents in the form of election-cycle attack ads. In fact, even the mere threat of such influence infects political thinking. Lee Drutman, who studies the impact of money on gun policy for the Sunlight Foundation, says lawmakers are plain afraid of the predatory political attacks: “They know what the NRA is capable of doing and the kinds of ads they’re capable of running, and especially if you’re someone facing a close election, you don’t want hundreds of thousands and potentially millions of dollars in advertising to go against you.”

Still, if we theoretically assume that gun cash played on a partial role in the defeat, what other possible factor could have flexed its muscle to turn back the will of the majority? The vote tally tells the tale. On that Wednesday afternoon, the background check amendment failed in the Senate by a vote of fifty-four in favor versus forty-six against. And hour later, another popular amendment to make gun trafficking illegal failed by a vote of fifty eight in favor versus forty-two against. Under the principle of majority rule, both of these majority vote totals would have meant success in the Senate for the proposed legislation. But as we know, without a super-majority to bypass the filibuster (a requirement that is nowhere to be found in the U.S. constitution), there’s just no chance.

Four days after the vote on Meet The Press, historian Doris Kearns-Goodwin aptly described the connection between these two problems: “That structural Senate, given the 60 votes that are needed, given who they listen to, given the power of special interest – public sentiment cannot penetrate. And we’ve seen it now for the last decade. That’s what the dysfunction is about.”

And if the legislation had actually made it to the House, although our lower chamber still abides by majority rule, the likelihood of passage would have been extremely low. House members, under the pressure of the rule that requires elections every two years, have to view nearly every decision through the prism of short-term political consideration. And then we have the rules that permit – and encourage – the flood of money to slosh across Capitol Hill. Money that can be even more powerful as a threat to incumbent lawmakers – because they have less time to build a war chest big enough to defend against incoming fire.

On top of those rules, we have the rules that mandate winner-take-all elections in single-member congressional districts that are gerrymandered (rigged) by the political parties (also requirements that are nowhere to be found in the Constitution). When we combine these rules with an America that has self-sorted itself geographically over the last three decades, what we get is a heightened level of partisanship in the U.S. House – and a vanishing number of moderate representatives.

According to the Cook Political Report, between 1998 and 2014, the total number of swing congressional districts nosedived 45% from 164 to 90. But even in those “competitive” districts, we still know which party will win most of the races. What this all means is that the bloc of centrists we have traditionally relied on in Congress to work across the aisle and negotiate deals to pass practical pieces of legislation has been shredded. In 1993 there were 113 crossover representatives in the House. By 2014, there were 26. This is a massive drop. We have nearly lost the political center in the U.S. Congress.

But even if the legislation had gotten through the Senate and by some miracle there was a bipartisan majority in the House ready to send it to the White House – it first must be called to a vote. The Speaker does this. And after Sandy Hook, that Speaker was John Boehner. A Speaker who has an A rating from the NRA, and who had received more than $120,000 by 2012 from the NRA, the sixth highest total of all 535 incumbent members of Congress at the time. Even if somehow members were ready to begrudgingly vote for the most modest gun safety measure that could squeak through, that’s not what necessarily motivates the person holding the power to let it happen. The wrongheaded rules mangle our leaders’ incentives, and discourage a logical decision-making process (recall the immigration bill that passed out of the Senate but was never called for a vote in the House – where it likely would have passed).

Two-year terms are obsolete in this day and age. Eisenhower and LBJ made that case fifty years ago. The argument is only stronger in the 21st century. The regional political realignment in our country, combined with winner-take-all rules in single-member districts, conspire to rig our House elections and jack up partisanship on Capitol Hill. The filibuster rule overturns one of our Constitution’s founding principles, majority rule, and grinds the gears of progress to a halt in the U.S. Senate. And the money flood takes all of these congressional defects and exacerbates each with the power of a steroid injection.

Whoever the next Speaker is might be successful in avoiding a government shutdown in December, and might not. But even if that crisis is averted – for a while – let’s not pretend it’s any reason for celebration. Big problems and challenges have been awaiting effective solutions for years. Even if highly qualified, the person who presides over the House can’t alone solve the dysfunction in our first branch of government, because a large part of it is structural. The defects are driven by the rules. And we’re going to need to reform those rules, in order to reform our system.