What Happens When Congress Fails to Do Its Job?

I. In 2008 Barack Obama almost asked Evan Bayh to be his running mate. It was "a coin toss," recalls David Plouffe, Obama's campaign manager. Bayh lost that toss, but the fact that he was a finalist—much as he'd been for John Kerry four years earlier—was proof that he was doing something right in his day job as junior senator from Indiana. His future seemed bright.

Last month he announced his retirement.

There was no scandal. Bayh wasn't plagued by poor fundraising or low poll numbers. Nor is fatigue a likely explanation: at 54, Bayh is fairly young, at least when you're grading on the curve that is the United States Senate.

What drove Bayh from office, rather, was that he'd grown to hate his job. Congress, he wrote in a New York Times op-ed, is "stuck in an endless cycle of recrimination and revenge. The minority seeks to frustrate the majority, and when the majority is displaced it returns the favor. Power is constantly sought through the use of means which render its effective use, once acquired, impossible."

The situation had grown so grim, Bayh said, that continued service was no longer of obvious use. Americans were left with a bizarre spectacle: a member of the most elite legislative body in the most powerful country in the world was resigning because the dysfunctions of his institution made him feel ineffectual. "I simply believe I can best contribute to society in another way," Bayh explained, "creating jobs by helping grow a business, helping guide an institution of higher learning, or helping run a worthy charitable endeavor."

This is what it's come to, then: our senators envy the influence and sway held by university presidents.

II. In the months leading up to the health-care-reform vote, there was much talk that Congress is broken and serious reform is necessary. Some would say the bill's passage is a decisive refutation of that position. They are wrong.

What we have learned instead is that even in those rare moments when bold action should be easy, little can be done. Consider the position of the Democrats over the last year: a popular new president, the largest majority either party has held in the Senate since the post-Watergate wave, a 40-seat majority in the House, and a financial crisis. Congress has managed to pass a lot of legislation, and some of it has been historic. But our financial system is not fixed and our health-care problems are not solved. Indeed, when it comes to the toughest decisions Congress must make, our representatives have passed them off to some other body or some future generation.

The architects of the health-care-reform bill, for instance, couldn't bring themselves to propose the difficult reforms necessary to assure Medicare—and the government's—solvency. So they created an independent panel of experts who will have to propose truly difficult reforms to enable the Medicare system to survive. These recommendations would take the fast track through Congress, protected from not just the filibuster but even from revision. In fact, if Congress didn't vote on them, they'd still become law. "I believe this commission is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve," says Office of Management and Budget Director Peter Orszag, and he meant it as a compliment.

Cap-and-trade, meanwhile, is floundering in the Senate. In the event that it dies, the Environmental Protection Agency has been preparing to regulate carbon on its own. Some senators would like to block the EPA from doing so, and may yet succeed. But those in Congress who want to avert catastrophic climate change, but who don't believe they can pass legislation to help do so, are counting on the EPA to act in their stead.

The financial meltdown was, in many ways, a model of quick congressional action. TARP had its problems, and the stimulus was too small, but both passed, and quickly. After they'd passed, though, it became clear they weren't sufficient, and that Congress wasn't going to be able to muster further action. So the Federal Reserve, in consultation with congressional leaders, unleashed more than a trillion dollars into the marketplace. It was still the American people's money being invested, but it didn't need 60 votes in the Senate.

Congress was reticent to do more about the financial crisis because of concern over the deficit. But even apparent bipartisan agreement wasn't sufficient to compel action. Sens. Kent Conrad (D-N.D.) and Judd Gregg (R-N.H.) lead the Budget Committee, and they called for their committee—and all the other committees—to be bypassed altogether in favor of a deficit commission operating outside the normal legislative structure. "Some have argued that House and Senate committees with jurisdiction over health, retirement and revenue issues should individually take up legislation to address the imbalance," they wrote in a joint op-ed. "But that path will never work. The inability of the regular legislative process to meaningfully act on this couldn't be clearer." They were right: their proposal was defeated by a filibuster and the president formed a deficit commission by executive order instead.

As for foreign policy and national security, Congress has so abdicated its role over war and diplomacy that Garry Wills, in his new book, Bomb Power, says that we've been left with an "American monarch," which is only slightly scarier-sounding than the "unitary executive" theory that the Bush administration advocated and implemented.

This is not a picture of a functioning legislature.

Some might throw up their hands and welcome the arrival of outside cavalries, of rule by commissions and central banks and executive agencies. But there is a cost when Congress devolves power to others. The American public knew much more about the stimulus than about the Federal Reserve's "quantitative easing" program because Congress is much more accessible and paid more attention by the media. The EPA can impose blunt regulations on polluters, but it can't put a price on carbon in order to create a real market for cleaner energy. The debt commission's recommendations will still require a congressional vote. When Congress doesn't work, the federal government doesn't work, no matter how hard it tries.

III. So why doesn't Congress work? The simplest answer is that the country has changed, and Congress has not changed alongside it. Congress used to function despite its extraordinary minority protections because the two parties were ideologically diverse. Democrats used to provide a home to the Southern conservatives known as the Dixiecrats. The GOP used to include a bloc of liberals from the Northeast. With the parties internally divided and different blocs arising in shifting coalitions, it wasn't possible for one party to pursue a strategy of perpetual obstruction. But the parties have become ideologically coherent, leaving little room for cooperation and creating new incentives for minority obstruction.

Take the apparent paradox of the filibuster. It is easier than at any other point in our history to break a filibuster. Until 1917, there was no way to shut down debate, and until 1975, it took 67 votes rather than today's 60. And yet, the United States Senate had to break more filibusters in 2009 than in the 1950s and 1960s combined.

"It's not uncommon today to have things filibustered that, once they get past the filibuster, are passed unanimously," complains Bayh. "So it's clearly for the purpose of preventing action, not because of any underlying, substantive disagreement." Even Bill Frist, the former Republican Senate majority leader, has been surprised by the Senate's embrace of the tactic. "Compared to 10 years ago, 15 years ago, 20 years ago," he said during an appearance on MSNBC, "it's being used way too much."

The problem has become sufficiently severe that senators, who normally cling to their institutional traditions like Vatican cardinals, are talking about addressing it. "Next Congress," Harry Reid said to a group of reporters in March, "we are going to take a look at the filibuster. And we're going to make some changes in it."

But the rise of the filibuster is not just a case of rules-gone-wild: it's evidence of a broader polarization in the United States Congress. As the party heretics lost or switched sides, Republicans and Democrats found themselves more often in agreement with themselves and less often in agreement with each other. According to the political scientists Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Democrats and Republicans now vote against each other more regularly than at any time since Reconstruction.

As the Reconstruction watermark suggests, polarized parties are often the result of a polarized country. In this case, it's the opposite. We are no more divided than we were in the 1950s and '60s, when civil rights and the Vietnam War and the feminist revolution split the country. But where the legislative process once worked to harmonize those differences, today it accentuates them. "When the public sees all Democrats on one side of the issue and all Republicans on the other, it's a cue," explains Ron Brownstein, author of The Second Civil War. "And so people's opinions harden, which in turn hardens the politicians on both sides. Then you have the increasingly politicized media, and the activist groups launching primaries. It's all a machine where the whole system is working to amplify our differences."

Senate Republican leader Mitch McConnell said as much last week in an interview with National Journal. "Whether it became the stimulus, the budget, Guantánamo, health care," he said, "what I tried to do and what John [Boehner] did very skillfully, as well, was to unify our members in opposition to it. Had we not done that, I don't think the public would have been as appalled as they became."

Minority obstruction works because voters and the media often blame the majority. If nothing is getting done and the two sides bicker ceaselessly, it seems sensible to blame the people who are running the place.

But the lesson that the minority could prosper if Washington failed was a bad one for the system to learn. The rules of the United States Congress made it possible for the minority to make the majority fail by simply obstructing their agenda. And so they did. Republicans won in 1994, after killing health-care reform. Democrats adopted the tactic a decade later, taking Congress back in 2006 after killing Social Security privatization. This year, Republicans' strategy was to kill health-care reform again. That's what Sen. Jim DeMint meant when he promised conservative activists that "if we're able to stop Obama on this, it will be his Waterloo. It will break him."

What's important about all those examples is that at no point did the minority party come to the table and propose a serious alternative. Republicans left the health-care system to deteriorate, and Bob Dole went so far as to vote against two bills that had his name on them in the mid-'90s. Democrats enforced a simple proposition in the Social Security fight: there would be no Democratic Social Security reform bill. This year Sen. Lamar Alexander gave the introductory remarks for the Republicans at the president's recent health-care summit. Alexander said the Republicans—the party that pushed No Child Left Behind, the Iraq War, the Medicare prescription-drug benefit, and a total restructuring of the tax code—had come to the conclusion that the United States Congress shouldn't attempt "comprehensive" reforms.

The strategy behind all this is to deny the other side an accomplishment, not put the minority's stamp of approval on a bill that would strengthen the majority's campaign for reelection. Obstruction, not input, has become the minority's credo. And that means gridlock, not action, has become Washington's usual signature.

IV. We like to think of American politics in terms of individuals. Candidates promise to bring a businessman's eye to Congress, or to be an independent voice from Massachusetts. They tell us about their families and their life trials. By the end of most campaigns, we could pick the winner's golden retriever out of a lineup if we had to.

This is a terrible error, because it leads us to change individuals when we need to change the system. And here is the system's problem: the minority wins when the majority fails, and the minority has the power to make the majority fail. Since the rules work no matter which party is in the minority, it means no one can ever govern.

We've become so accustomed to the current state of affairs that some think it core to the functioning of our democracy. "It's called the filibuster," Senator Gregg lectured Democrats from the floor of the Senate. "That's the way the Senate was structured…The Founding Fathers realized when they structured this they wanted checks and balances."

In fact, the filibuster was not an invention of the Founding Fathers. It was an accident: in the early 19th century, the Senate cleaned out its rule book and deleted the provision that let them call a vote to move from one issue to another. It took decades until anybody realized the filibuster had been created.

But Gregg is right to emphasize the importance of checks and balances to the system. The problem is that gridlock—which is partly the result of the filibuster—is eroding them. If the minority is always obstructing, then Congress can never govern. And when Congress can't act, the body cedes power to others. That worries longtime observers of the institution. "The Founders would be appalled at the notion of Congress delegating its fundamental lawmaking responsibilities to others," says Norm Ornstein, a congressional expert at the American Enterprise Institute.

Meanwhile, those who can act gain power at the expense of the Congress. The office of the president has grown in stature and authority. Early presidents delivered the State of the Union as a written letter because giving a big, dramatic speech to Congress would have been seen as overstepping the boundaries of the executive office. Modern presidents use the State of the Union to set the legislative agenda for Congress's next session, a development that would have shocked the Founders.

But it makes sense to us. The president is the main character in the media's retelling of our politics. His approval ratings are more important than the approval ratings of Congress even when we are voting only for congressmen. And it's getting worse: the political scientist Frances Lee has found that on average, each successive Congress spends a larger percentage of its time on the president's agenda than did its predecessor. The result is that there's the president's party in Congress, which mostly tries to help him out, and the opposition party, which tries to hinder him.

Like a parliamentary system, our politics is now defined by tightly knit teams and organized around the leader of the party or government. When Republicans controlled Congress in the early 2000s, they were so subjugated to the White House that Frist was handpicked by President Bush as the Republican Senate leader when Trent Lott, at Bush's urging, resigned over controversial comments he made.

But unlike a parliamentary system, our institutions are built to require minority cooperation. "We are operating in what amounts to a parliamentary system without majority rule," writes Brownstein in a recent National Journal column. "A formula for futility."

V. Sen. Michael Bennett, a Democrat from Colorado, is an expert at assessing and repairing failing institutions. He began in the world of corporate debt restructuring and recently ran Denver's public schools. The difficulty with saving troubled organizations, he says, is that the creditors and interests fight over the remains rather than banding together to nurse the body back to health. "Every one of those negotiations was about getting people to see their self-interest in moving the institution forward," he recalls.

Last year he was appointed to the United States Senate. After a year in the body, what he sees looks uncomfortably familiar: a culture of mistrust in an institution that requires radical transformation. Stakeholders ferociously trying to eke out every last advantage, and in doing so, destroying the very thing they all have a stake in.

Polls back him up: a recent Gallup survey found that only 18 percent of Americans approve of the job Congress is doing. Compare that with the president's approval ratings, which hover around 50 percent—despite the fact that Congress is largely just considering the president's agenda. One of the implications of these numbers: Americans are so disgusted by Congress that they don't trust it to do anything big. But our problems aren't politely waiting around until Congress gets its act together

So how to change Congress? Well, carefully. Reform may be impossible in the day-to-day context, as the minority cannot unilaterally disarm itself. But the day-to-day context isn't the only possible context. "You have to do the John Rawls thing," says John Sides, a political scientist at George Washington University. "Go behind the veil of ignorance. Figure out the system we'd want without knowing who will be in charge or what they will be doing."

This work should start with a bipartisan group of legislators charged with reforming the rules that Congress works by, but their recommendations should only go into force in six or eight years, when no one knows who will hold the gavel. That lets everyone think of themselves as a potential majority as well as an embattled minority, and more important, it lets members of Congress focus on the health of the institution rather than their fortunes in the next election. It lets Congress be Congress again, if only in theory.

As for what the rules should say, the technical details should be hashed out by smart people from both parties. But the place to start is by ridding the Senate of the filibuster and its lesser-known friends (holds, unanimous consent to work for longer than two hours at a time, and so on), admitting that they are no longer appropriate given the polarizing realities of our politics.

That may seem like a radical change, but recall that the filibuster is an accident, and there is nothing radical or strange about majority voting: we use it for elections (Scott Brown won with 51 percent of the vote, not 60 percent), Supreme Court decisions, and the House of Representatives. As for a majority using its power unwisely, elections can remedy that. And voters can better judge Washington based on what it has done than on what it has been obstructed from doing.

The irony is that getting rid of the rules meant to ensure bipartisanship may actually discourage partisanship. Obstructionism is a good minority strategy as long as it actually works to stymie the majority's agenda and return you to power. But if it just means you sit out the work of governance while the majority legislates around you, your constituents and interest groups will eventually begin demanding that you include them in the process. And that's as it should be: we hire legislators to legislate. We need a system that encourages them to do so.