Gridlock Games: "If you can do it, so can I. . ."

Back and forth between the Majority and Minority "Leaders" of the U.S. Senate on how they rationalize undermining the Constitution on the requirements to act on their "advise and consent" responsibilities. It's gamesmanship at the highest level with the highest stakes -- the future of the country.

It's not just one party -- it's both. They thrive and continue the games as long as the American public will allow it. The public is feed up and that's why the Republican party is unraveling with the popularity of Donald Trump; and, the mainstream Democrats are amazed at the popularity of Bernie Sanders.

The games must stop if we are to preserve our democracy and maintain a functioning government. The problems will not be solved from within -- it demands a massive, bipartisan public campaign for reform. #DoYourJob

 

Harry Reid: 'We Have Never Held Up a Supreme Court Nomination'
SUN, MAR 20: Senate Minority Leader Harry Reid  (D-NV) on lame duck sessions and Supreme Court nominations.

 

Senate Majority Leader Mitch McConnell (R-KY) joins Meet the Press to discuss Donald Trump and the battle in the Senate over whether to hold hearings for Pres. Obama's Supreme Court nominee.

Looking Back: A Brief Perspective On Gridlock & Broken Government

While doing some research on gridlock and broken government, I came across an interesting Senate Hearing held on March 14, 2012. The hearing was called “Raising the Bar for Congress: Reform Proposals for the 21st Century.” The hearing was held by the Senate Committee on Homeland Security & Governmental Affairs, Chaired by then Senators Joe Lieberman (I-CT) with minority chair Olympia Snowe (R-ME). At the time, both had announced their intention to retire. [Link to the hearing and webcast below]

Most interesting was the testimony from Donald R. Wolfensberger, then with the Woodrow Wilson Center & Bipartisan Policy Center, who chronicled his 50 years of working on congressional reform efforts dating back to 1965.

Reflecting on his experience and the Congress in 2012, he said:

“For in looking back on those years it seems that no matter how much Congress reformed itself to adapt to changing times and public pressures, the more it has seemed to slip backwards into more difficult times and circumstances for which no measure of change would seem adequate. Notwithstanding occasional bursts of reform and legislative productivity, Congress seems to be stuck in a perpetual state of popular disfavor because of perceived gridlock and partisan bickering. Today Congress’s job approval rating hovers somewhere between 9 and 13 percent—the worst I’ve ever seen it. The people are reacting to an institution they see as unable to tackle even its most basic responsibilities.”

[Mar 9, 2016: In the U.S., 13% approve of the job Congress is doing, in line with approval ratings ranging from 11% to 16% since August. The current rating is just four percentage points above the record low of 9% recorded in November 2013.]

It all sounds very familiar and, unfortunately, has become even worse in the last 4 years. Mr. Wolfensberger offered a list of ten guiding principles or objectives for use in shaping worthwhile reforms:

·        End the gridlock;

·        End the bitter partisanship and incivility;

·        Restore public confidence in the institution by making it more responsive to national problems;

·        Strengthen the legislative branch vis-à-vis the executive branch;

·        Better balance committee and party leadership powers;

·        Restore the regular order of fairness and deliberation;

·        Make Congress more efficient and productive;

·        Address problems that really matter versus those that only have a political purpose;

·        Enhance Congress’s oversight role; and

·        Better inform the public about the activities of their government.

This blog focuses on the last principle do to the necessity of having an informed public to effectuate change. It is exceedingly difficult to achieve change from within the House or Senate because, as we have discussed previously, both political parties benefit from the chaos they have created and use it to their advantage to move their own political agenda.

Intense bipartisan political pressure, combined with assistance from a few remaining Congressional statesmen and outside political leaders with the highest integrity may be the only means of achieving reform. In an upcoming post, I will discuss the urgent role of President Barack Obama in addressing the issue of Congressional gridlock.

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Raising the Bar for Congress: Reform Proposals for the 21st Century; Committee on Homeland Security and Governmental Affairs; March 14, 2012 10:00AM

#DoYourJob

The U.S. Senate (DEMs & GOP) just doesn't get it! The argument that the Constitution doesn't really require the Senate to act on advise and consent is obviously false. Likewise, the argument that DEMs did it, and would do it again if the tables were turned, is silly and childish. 

This kind of "tit for tat" behavior is what has demeaned the sometimes called "worlds greatest deliberative body" to the likes of a school yard brawl. It is precisely the reason that has led to rise in popularity of Donald Trump and Bernie Sanders -- both sides want action for their positions -- but nothing happens because of gummed up, arcane rules and procedures that prevent majority rule and discourage bipartisan action on anything. Unfortunately, the election of either Trump or Sanders is not going to fix the problem and their lofty promises for change will end up in the typical trash can of political rhetoric.

The Constitution and the Founders certainly envisioned the Senate to provide an "advise and consent" role to appointments, treaties, etc. -- otherwise they wouldn't have included it. The Senate also has specific rules on how it carries out its advise and consent responsibilities -- Judiciary Committee hearing(s) and referral to the full Senate for a vote. The only argument seems to be whether they can delay their responsibilities indefinitely.

Taken to the extreme, the idea that the Senate does not have to provide an "advise and consent" role on appointments, treaties, etc would bring government to its knees and deny the public its right to a functioning government. In effect, it would instill in the Senate and extreme power over the Executive Branch not envisioned in the intricate system of "checks and balances" included in the Constitution.

Further, the "Senate" is a body of 100 members. Even if for arguments sake, the Constitution envisioned that the Senate did not have to exercise an "advise and consent" role, the "Senate" as a body has not expressed its decision to take this extreme course of refusing to act. So far as I know, this is simply the individual decision of the Majority Leader Mitch McConnell. Certainly, the Constitution and Founders did not envision giving such extreme power to one individual -- not even the President of the United States and certainly not the Senate Majority Leader.

If the "Senate" is going to take such extreme action it should at least put a roll call vote on record that it is the decision of the body and not the decision of one lone Senator.

Next, we must ask, if the Senate does not act in accordance with the Constitution, what public recourse is available to challenge or correct their action. Most scholars say the Senators are immune to legal action (even for doing nothing) and the public lacks standing to sue.

Watch This Senate Hearing & You Will See Why The U.S. Senate Is Broken

If you really want to see a graphic example of how the esteemed, august body of the U.S. Senate works and why it is broken you need to force yourself to watch this March 10, 2016, hearing of the Senate Judiciary Committee as they debate whether or not to hold a Constitutionally required hearing to consider a nominee of the President to fulfill a vacancy on the U.S. Supreme Court in the remaining term of President Obama.

What is important is to note how the Republicans rationalize there decision not to hold a hearing based on the practices of Democrats in the past on previous similar situations. The Democrats make there stand based on the Constitution and the requirements of the President to make an appointment and the Senate to "advise and consent" by holding a hearing on the nomination and then make a recommendation and forward it to the full Senate for a vote.

There is a constant theme that if the Democrats were in power they would do the same thing and discussions of how when the Democrats were in power they altered and bent the rules to suit their purposes -- so we (Republicans) can do it too.

This is the critical dilemma and the reason the system is broken. It is also the reason the Senators -- Democrats and Republicans -- cannot solve the problem. Laws, rules, procedures, policies, history -- and the Constitution itself -- are interpreted, altered and contorted to fit the party in power.

This is what the Senate Judiciary Committee website indicates is its responsibility:

• "When a vacancy occurs on the Supreme Court, the President of the United States is given the authority, under Article II of the United States Constitution, to nominate a person to fill the vacancy.  The nomination is referred to the United States Senate, where the Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel.  Traditionally, the Committee refers the nomination to the full Senate for consideration." [https://www.judiciary.senate.gov/nominations/supreme-court]

The Gold Standard For Gridlock: "Senatorial Holds"

I have this vision of a cartoon with a giant Rube Goldberg-like machine with lots of valves and spinning wheels, etc. labeled "Government." Standing next to this giant machine is a tiny little figure with a devils cap and the back of his shirt is marked Senator. He has a long pitchfork in his hand and is about to stick it into one of the spinning wheels. The caption reads "Senator working."

Seriously, if one wanted to design a mechanism to stop the wheels of government, there could be no better tool than the infamous "Senatorial Hold." And, it gets better (or worse, depending on your perspective) -- there are "regular holds"; "secret holds"; "tag-team holds"; "multiple holds"; and more I'm sure.

The concept is really simple -- any one of the 100 Senators in the U.S. Senate can place a "hold" on a piece of legislation moving through the body -- the effect is that the legislation is stopped dead in its tracks. The Washington Post in a 2010 opinion piece described the secret hold this way: "OF ALL THE maddening practices that clog the arteries of the national legislature, the most infuriating may be the Senate institution known as the 'secret hold'. . .a single senator can stop action -- on a piece of legislation or a pending nomination -- by placing a 'hold.' No reason needs to be given, though generally one is, often having nothing to do with the merits of the underlying issue."

Certainly, the Constitutional Founders did not envision this tool to gum up the works of democracy. Had the concept been a part of the original Constitution discussion and papers, we would likely still be under British rule. The Senate, derived from the senatus, Latin for the "council of elders", the august body intended to be the wise statesmen; sometimes called the "worlds greatest deliberative body." Well, perhaps once upon a time in a land far away; but, fast forward to 2016 where political polarization is at an all time high -- where deceit, dishonesty, inflammatory rhetoric and devious manipulation are commonplace. Now, hand these "wise, elderly statesmen" the tool, known as the "hold" and imagine the consequences.

Ironically, the Senate hold originally was designed to speed up the business of the Senate. The theory was that if the Senate Majority Leader knew in advance of a Senator's intent, they could better schdule the business of the Senate if they were aware that a Senator(s) were going to object to an item (e.g. legislation, appointment, etc.). Also, as a courtesy to a Senator having a concern with an item, it would allow them additional time to review the matter.

Ultimately, the decision to honor a Hold request, and for how long, rests with the Majority Leader. However, Holds, like filibusters, can be defeated through a successful cloture motion requiring 60 votes (supermajority of 3/5). If the leadership brings up measures despite holds, everything is delayed due to the need for cloture votes. Thus, as with the filibuster (which has now become commonplace) a minority party can use these tactics to frustrate and delay Senate business and circumvent the the axiom of "majority rules" which most of us learned in kindergarten.

As is discussed in research and articles regarding the Hold process, the general public does not tend to know or pay much attention to the procedure, but scholars, journalists, political scientists, and elected politicians know it well. It's interesting that you don't hear a lot of public discussion of this incredibly disruptive mechanism that undermines the Constitution, democracy itself and the concept of majority rule.

You hear volumes about government gridlock, delays, and dysfunction; but, hardly a word about Senatorial Holds. You hear politicians bemoaning the fact that government is broken and promising to fix it and work toward bipartisan solutions. For sure, at least five of the six remaining Presidential contenders know very well about the Senatorial Hold process and how destructive it is to the democratic process -- four of them are or have been Senators and one was a House member who certainly knows how things get bottled up in the Senate. Donald Trump, not being a Washington insider, may not understand or know the process, but would quickly learn that deals in the U.S. Senate aren't like deals in the private sector.

So, you ask: Why doesn't someone propose fixing it? It's not a law. It's not a rule. It's simply an informal process in the U.S. Senate that by all rights seems to be illegal by violating Constitutional expectations. Why isn’t the public outraged? Why don’t responsible Senators expose this practice and propose solutions. Why doesn’t the President ever talk about it? He was a Senator. He’s not running for office – now would be a good time.

Well the public isn’t outraged because they generally don’t know about it. And, the responsible political leaders don’t talk about it much because they are constrained by an unwritten political phenomenon known as power and the idiom: “whose ox is being gored.”

Simply put – the Senatorial Hold, like the filibuster, can be very advantageous to either party in advancing political agendas depending on who has the majority power or control in the Senate, the House or the Presidency. It essentially gives any one Senator, no matter what their party, enormous power to block, stall, or frustrate any legislative matter – hardly a Constitutionally authorized procedure.

To be fair, there have been quite a few modest, yet complicated, attempts to put some constraints on the process. Way back in 1983, there was actually a Senate appointed study group that recommended that the process be abolished. [See reference #5 below]. That was when there was actually a bit of decorum in the esteemed body.

In 2007, President George W. Bush signed into law the Honest Leadership and Open Government Act (S. 1). Section 512 of Title V of the law (P.L. 110-81) specifically dealt with the issue of secret holds. While it sounds good, Section 512 is neither a Senate rules change nor a standing order of the Senate, and merely specifies the exact steps for making an anonymous hold public. It is generally recognized as not being effective in ending secret holds.

In 2010, Senator Claire McCaskill as well as Senators Sheldon Whitehouse, Mark Warner, and other Members, joined the Senators Wyden and Grassley in an effort to end secret holds. It basically failed and other attempts in 2011 similarly resulted in Senators retaining largely the same power to anonymously stall action.

Frankly, most of the proposed constraints are feeble and really do not undermine the destructive nature of the procedure. So what began as an informal courtesy to Senators in the late 1950s under the majority leadership of Lyndon B. Johnson, as a way for Senators to make routine requests regarding the Senate’s schedule, has turned into a potent extra-parliamentary practice.

Washington gridlock and the resulting public displeasure with the broken system has its roots in the Senatorial Hold process. The process must be radically changed or eliminated if gridlock is going to be addressed. The result is severe, the public is denied its right to see the policies of an elected President – Democrat, Republican or Independent – carried out on a level playing field in accordance with the Constitution. It’s unconstitutional in that it provides an extreme grant of power to any individual Senator, far beyond anything envisioned by the Founders or included in the Constitution.

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1. LET'S SHED LIGHT ON A SENATE SECRET, Senators Ron Wyden & Chuck Grassley, November 17, 1997

2. “Holds” in the Senate, Congressional Research Service, March 19, 2015

3. Senate Holds, from Wikipedia

4. Senate Holds, from Open Congress

5. Proposals to Reform “Holds” in the Senate, CRS Report RL31685, August 31, 2011

Gridlock with a capital "G"

It’s hard to believe that every U.S. Representative & Senator doesn’t know the reason that there is gridlock in Washington, DC. They also know how to fix it. They caused it with silly rules and procedures that don’t make sense and undermine the basic tenets of democracy and the constitution.

The filibuster rules in the Senate and the “Hastert rule” in the House are the principal reasons that very little gets done in the nation’s capitol. Now add gerrymandering; out of control campaign financing (i.e. Citizens United); unrelated "riders" and you have the complete recipe for Gridlock with a capital “G”.

And it’s sad to know that it could all be fixed in a New York minute. All it takes is political will. But notice I haven’t said the key words yet — Democrats, Republicans or the President — they’re all responsible to some degree. It just depends on whose in power at the time.

They all talk about the gridlock in Washington and need to compromise and bipartisanship; but, they know they have purposefully inserted the mechanisms in the system that are designed to frustrate compromise and gum up the political process envisioned by the Founders.

So as the electorate and general public grows more and more weary of the D.C. shenanigans is it any wonder they are gravitating toward the likes of some of the outlandish options available in the current crop of 2016 Presidential candidates.

We’ll get into all the gory details; but this is the opening salvo.

·        General Public: The general public needs to become more educated about these arcane practices and how they totally undercut their choices at the ballot box to the point of making them nearly useless.

·        Interest Groups: Responsible public interest groups need to assist in informing their members and designing campaigns to overturn these irresponsible, perverted means to undermine democracy.

·        News Media: The media and pundits need to help in this educational process by emphasizing at every occasion the connections to these obstructionist tools.

·        Elected Statesmen: The few responsible, statesman-like elected officials need to work tirelessly to expose and tear down these barriers to effective government.

·        POTUS: And, finally, the President must use the bully pulpit to speak out against these contrived obstacles and let the public know how their will is being shutdown.