Worst Congress ever?

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The American Enterprise Institute (AEI) is a bastion of conservative and neo-conservative ideology and politics. This think-tank’s lobby on the several floors that AEI occupies in a building on Connecticut Avenue just south of Dupont Circle in Washington, D.C. is filled with the latest works of Gingrich and analyses of the greatness of Reagan. When President George W. Bush wants to give a speech to a friendly crowd, he comes to the AEI.

But there are at least a few scholars in residence there who do not fit that mold. Norman Ornstein, a widely-respected analyst of Congress and its contemplations and conniving, is among them. A staunch, self-described “congressionalist” -meaning someone who believes that the elected representatives of the people, and not the president, are “the first branch” of American government - Ornstein is passionately devoted to the institution rather than to a party.

His contempt for the version of Congress that appeared under the leadership of Dennis Hastert, Tom DeLay, and William Frist during the Bush administration found expression in a book, co-authored with Thomas E. Mann of the Brookings Institute and published last summer, entitled, The Broken Branch. The title was actually an understatement of Ornstein’s view of Congress during that time. In his view, for a time, the American people were no longer represented in “the people’s house.”

SN&R caught up with Ornstein in between trips to Orlando, St. Louis and Los Angeles to deliver talks and lectures. His office looked like that of any busy professor, every flat surface crammed with piles of paper and stacks of books. Photographs of Ornstein with the major political figures from all parties during recent decades casually adorn the walls, many of them askew in their hanging. But the physical chaos of his office only highlights the sharp, orderly reasoning of Ornstein’s critique of Congress as he delivered it in the course of an interview.

So there’s no mistake, would you summarize the essential thesis of your latest book about Congress, The Broken Branch?

That Congress, especially the 109th, the last one, was the worst in terms of process and quality policy that I have seen in 37 years of being around Washington. It’s certainly the worst in modern memory. Worse than most that we had perhaps even before that. That it was a combination of problems, some going back decades, built into a political process, some cultural, but a lot of them choices made by the leaders who’ve been running Congress for the last few years. And what we have is a break down in the regular order, a breakdown in the deliberative process, a collapse of oversight, a collapse of any sense of an independent identity for the first branch, being run over roughshod by the executive, with the president and vice-president with the most expansive view of executive power in history. And a culture of corruption.

I think I understood most of that. But what do you mean by “the regular order?”

It’s just a web of rules and norms that kind of regulate conduct and outcomes in any institution. So the prime example: a vote supposed to last 15 minutes by custom and longstanding tradition, stretched to three hours, from 3 o’ clock to 6 o’ clock in the morning in the House on the Medicare prescription drug bill, and which would have stayed open for days until they could turn the outcome around. At many points along the way in that three hours, an absolute majority, more than 218 members, voted against the bill. But they ignored it. The equivalent of having the buzzer sound at the end of a basketball game with one team ahead by a point, and the referees saying, ‘We’re going to keep the game going and keep it going indefinitely until the losing team gets one point ahead, and then declare the game over.’ What confidence would you have in the game of basketball if they did that?

This was altering the outcome of a vote. Combine that with bringing bills up at 3 o’ clock in the morning, thousand-page bills with nobody having had a chance to see or read them; having conference committees meet in the dead of night and agree on provisions that neither house had even considered, and in at least one instance have the conferees shake hands and finish a bill; and then have a complete piece of legislation which had never had a minute of hearings introduced by the leaders after that, which was eventually enacted into law. It’s an illicit process, and one which is not just breaking the rules. Sometimes it’s just bending them beyond recognition. But it’s no way to do business.

What was distinctive about this Congress that caused this across-the-board breakdown?

First, I would say, it’s not like there were good old days where everything was perfect. There were always flaws in the system. But for a long time we had a congress where members of the two parties saw each other as adversaries, oftentimes as allies, but certainly not as the enemy. So we had partisanship, which is perfectly fine. But it had deteriorated by the time of the last few years into a kind of tribalism. At the same time we had a level of ideological polarization more distinct than we’d seen before - a real problem finding the middle. We had, and we have had for years, a kind of parity between the two parties, where every election the stakes are high because the majority could change hands, and the differences between the parties are great. Some of this goes back to forty years of Democratic majorities. No matter who’s in charge for forty consecutive years, or how noble their intentions might be, you become arrogant and condescending and high handed and a little institutionally corrupt. And when you’re in the minority for 40 years you become increasingly frustrated and shrill. But when the Republicans took over, there really was the promise that they were going to behave in a better fashion. They were going to make the institution work better. There was a genuine effort, I think, to do so on the part of Newt Gingrich and some of his colleagues for at least four years. But then we saw something else happen. I think that it’s partly the Republicans in charge had a learning curve, where they could learn all the abuses a majority could do much more quickly, and then move it to a different level. A part of it was that they simply defined themselves more as lieutenants in the president’s army rather than an independent branch of government. And a part of it, which is a criticism that has resonated with many of the conservative Republicans in Congress who read the book and commented positively, is they lost their way. Instead of seeing the majority as something you use to accomplish ends, seeing an institution as something that needs to be revitalized, the end became staying in the majority by any means necessary.

Isn’t it true for all majorities in power?

It’s not new that a party would cling to power by whatever means it could. It is a little bit different in an era where the majority could shift every election. Forty years of Democrats in the majority, for most of them there wasn’t much chance that things would change. But it’s also true that there are issues which you might say, this is a bottom line for us. Then there are a lot of other issue s which don’t divide along partisan lines. Or where the stakes are not so high that it will be a wedge issue the next time around. A responsible majority finds ways to bring in not just the minority party, but its own rank and file members, finds ways to do oversight.

In fact, you could make the case that the way the Republicans operated was counter-productive. It helped to contribute to their loss of majority. Example: avoid the embarrassment that would come from doing oversight on the Department of Homeland Security when it was in a state of disarray, and the component part of the Federal Emergency Management Agency [FEMA] was getting lost in the process. So instead of that minor embarrassment, you get the major catastrophe of the reaction to Katrina - arguably the beginning of the end in terms of broad public support for President Bush. It’s not that you could have stopped a natural disaster. But the man-made disaster of the response by the federal government afterwards could have been ameliorated very substantially if you’d had a Congress behaving the way a Congress should behave.

What, if any, was the response to your viewpoint from the Republican leadership before the election?

I was sharing it with them almost weekly, partly because I write a weekly column for Roll Call, the newspaper of Capitol Hill that’s read by virtually all of the members. But I was also meeting with them. Some acknowledged that they had a serious problem on their hands. Some were deeply frustrated. That includes some people in the leadership. But you certainly didn’t get that viewpoint from Speaker Hastert or Majority Leader Frist. You certainly didn’t get it from Leader DeLay, who was trying to cling to power personally, not just institutionally. And we didn’t have any leadership in terms of altering the basic patterns here from anybody else to speak of. Frankly, in a couple of instances where there was unnecessary rancor and partisanship driven by the chairman of the Judiciary Committee, Jim Sensenbrenner, I think even if the Speaker had wanted to reduce that, he just felt powerless in the face of an obdurate, tough-minded, independent committee chair.

Did you have the impression of the Republican Majority Leader Tom DeLay running things, not Speaker of the House Dennis Hastert?

I believe it is an inaccurate perception. While DeLay had a very strong and important independent role inside, Speaker Hastert was not just some amiable dunce. He had a lot to do with it. The three hour vote on the floor on Medicare was Speaker Hastert. It was Speaker Hastert who, in an unprecedented fashion, brought a Cabinet member onto the floor of the House to lobby while the bill was being considered - something that anybody with concern about the institution would have recoiled against.

Allowing the executive branch unfiltered access to the House during a vote?

Basically that’s saying you’re not an independent branch of Congress. The Speaker almost never goes onto the floor to lobby, because that’s not traditionally the role either. The Speaker is not a partisan in that fashion. He not only went onto the floor, but he came close, literally, to twisting the arm of Nick Smith of Michigan. And of course we had a number of members, including Tom DeLay and another Republican from Michigan, who were reprimanded, rebuked by the ethics committee, for the way in which they tried to deal with Representative Smith.

What are your ideas for two or three key structural solutions to these problems?

A lot of this is a process problem. But there’s a fundamental reality here which is: bad process leads to bad policy. First you’ve got to try to change the process. That means especially bringing back deliberation, taking your time with legislation, real debate, allowing amendments - not every amendment, but on a lot of bills allowing amendments, having real conference committees, having transparency, having bills with a serious layover, 72 hours for a major bill and posted on the internet so that it’s available not just for members but anybody in the public to look at it, poke holes in it, look at where the problems are and the like. Some of that means you’ve got to hold to a schedule which is more than a day and a half a week, which is in effect what we had in the last Congress. You can’t just come in Tuesday at 6:30 p.m., do a pro forma vote and then leave, and then get out of town Thursday at noon. A five day week, or close to it, in our judgment. Ideally three weeks on, one week off - though doesn’t have to be that way - becomes very important. Then you’ve got to do real oversight. And that means, among other things, bringing back an authorization process that had virtually disappeared. Most programs and agencies are supposed to be re-authorized every five years, and in some cases every year, and we’ve pretty much abandoned that for fifteen years. When a program is reauthorized, it’s an opportunity to step back and say, alright, what’s working? what isn’t,? should we keep it? should we change it? That becomes an important element of this as well. And on the oversight front, it’s not a matter of changing the rules so much as it is having an understanding that you’re going to focus less on the ‘gotcha’ political embarrassment that’s out there with scandal and the like, or just punishing an administration, and more on are the laws being faithfully executed. Are they being done in a fashion that is sensitive to taxpayer money?

Isn’t the bottom line for reform dealing with political money and the need for public campaign financing?

I haven’t talked about the culture of corruption with you yet. It is interesting. When the book came out, I went around and talked to a large number of groups, including some lobbying organizations in town. They basically said just that - in the end it’s money, this town is awash in money. I’m sympathetic to that argument. It’s not all campaign money. And it’s not clear that there’s a lot you can do about some areas of that. There’s not much you can do about the reality now that a prime lobbyist can make two, three, four, five million dollars a year while a member of Congress makes $165,000. The $165,000, to most Americans, is one heck of a lot of money. But to put that into context: next year a first year associate at a major law firm in Washington, a 24 year old coming right out of law school, will make $165,000. So how do you deal with those disparities? There’s a kind of corrupting element built in. But there are some things to be done, including extending the revolving door ban, so that people can’t go right out and immediately take advantage of that. That itself is a corrupting thing, because you’re tempted to do favors to people, listen to them, open the door to them, when you know that you might be going out to work for them right away. So there’s some of that. Campaign finance? We need to at some point really think about a major overhaul of the system because the amount of time spent raising money is enormous now, and it corrupts the legislative process. There are two things we call for in the book - ban the so-called leadership PACs, where members raise money because that becomes the major vehicle for becoming a committee chair or subcommittee chair or a leader - not your talents or depth of maturity. That’s corrupting in itself. The chairman of the appropriations committee under the Republicans, Jerry Lewis, became chair because in a contest with two others, like in American Idol, he raised the most money. But we know that he did it in many ways by selling access in a very unsettling fashion. And if we had our druthers, we would ban fundraising while Congress was in session.

The personal financial situation of Congress people - how much do you think that’s a corrupting factor?

It’s not just that. In an ideal world, you’d have people making enough that they don’t look at their former colleagues or the lobbyists who come into see them with any level of envy. But it’s not just that people are poor and want more. They’re not poor. But it’s very hard to live in this town on the kind of money that people make, given what housing costs., and maintaining a home in the district. If you come from Muncie, Indiana, say, where a really nice house might sell for $300,000 to $500,000, and that money here will buy you a fairly small two bedroom condominium, and you have kids - that’s not doable. You’ve got to pay two or three times that much for a passable house within forty-five minutes of the Capitol. You don’t have the money. And when you’re competing for housing with second year associates in law firms, that’s very difficult. It’s a worrisome problem. The reality is, of course, Americans are not going to stand for paying a lot more money for congressmen or giving them a housing allowance. So there’s not much we can do with that. But we can at least have some impact on limiting some of those fundraising demands. Key to this, as well, is a functioning, meaningful, independent ethics process, so that members of Congress know that somebody is watching them, and that if they transgress that there will be a significant embarrassing, maybe even a fatal punishment inflicted. What the Republican leaders did - building on a kind of truce between the two parties after very destructive ethics battles that created a kind of process of mutually assured destruction - and then Speaker Hastert fired the chairman of the ethics committee and two Republican members because they had done their job and reprimanded DeLay, and that basically destroyed the process entirely. So you’ve got the venal people who figure that they can do whatever they want, and then you’ve got everybody else just paying much less attention to ethics and rules and norms because there was no chance that you’d ever be chastised if you did something wrong.

On the personal financial corruption side, what’s your perspective on the Doolittle case?

There are a lot of elements here that clearly need to be addressed. It’s unfortunate in many ways. We live in a society, obviously, where spouses do all kinds of things independently. But you’ve got a few people, including the Doolittles, who poison the well here by clearly, openly, defiantly thumbing their nose at the norms of the institution, or ethical propriety, trying to exploit the rules, to take advantage and make large bucks. The notion that you will profit personally from your fundraising by taking fifteen percent off the top - and the theory was that it was for Julie Doolittle’s efforts to raise the money. But it was fifteen percent off the top for virtually everything raised, whether she had anything to do with it or not - that’s just obviously not an appropriate set of behaviors. She also, I believe, worked for one of Abramoff’s associates for a while. And we know that DeLay, Abramoff and others have tried to funnel money to members by funneling them through family members, often for work that was highly questionable in terms of its expertise or the amount of work put in. All of this stuff is on the table in terms of any investigation of Mr. Doolittle. It clearly hurt him the last time around, and he barely escaped with his seat. He’s changing some of his behavior now, but way too late in the game. It’s a measure of how pathetically bad the ethics process is in Congress. Whether this is technically illegal or not, it is by any reasonable standard not ethical behavior on the part of a member of Congress, and it should have been at least reprimanded or chastised, and, frankly, they should have changed the rules. Mr. Doolittle, by the way, for years was one of the strongest and most vigorous and vociferous opponents of getting rid of soft money and of campaign finance reform. Now it fit his philosophy certainly. But you’ve got to call some of that into question when it turns out that he had an enormous financial stake in keeping the old campaign finance system, where you could raise unlimited amounts of soft money, and you had a great opportunity to take fifteen percent off the top of that.

Was the Doolittle case typical in 109th congress?

Delay’s wife also had a relationship with some of the organizations connected with the Abramoff clan and the people who worked for him and in and around him. His daughter made money from campaign and consulting arrangements. You know, in some instances, spouses or other family members getting paid for doing campaign work, where you have people who are experts, it can be perfectly alright. But it’s something that needs to be watched very closely, because it’s obviously a great temptation to try and convert this into just a conduit for just personal enrichment. What we’ve seen here is people doing it in a much more open, defiant, in your face way because they thought nobody was going to touch them.

Well, so what about public financing of campaigns?

Public financing is attractive in some ways, but its not that simple. Finding a system that could actually work, that effectively and fairly allocates money to candidates who’ve got a breadth of support to deserve it, paying for it, those are not easy things to do. Moving in a direction where we recognize, first of all, that it does take a lot of money to communicate in this society - the objective here cannot be cutting the money out of politics. You need a lot of money. It’s making sure that the money in politics is the right kind of money, isn’t done on a quid pro quo basis, and doesn’t involve a shakedown of donors, a corruption through a bribery process, or any of the other things that would leave you uneasy. Keep in mind that a lot of the scandals that we’ve been talking about - let’s pick Randy ‘Duke’ Cunningham - don’t have so much to do with campaigns. The Doolittle fifteen percent bonus off the top may. But the Doolittle ‘get my wife a consulting contract with a lobbying firm with which I have a cozy relationship’ has nothing to do with campaign money. So even if you could wave a magic wand and get a completely fair campaign system, it doesn’t mean you’re going to eliminate or break the back of some of the corruption that takes place.

Part of the Doolittle defense during his campaign was that dozens of other House members do something similar. Is that accurate?

It is the case that dozens of other members have family members who work on their campaigns. Because one may have a family member who may work and maybe getting a token amount. Or somebody with a strong background in whatever it is that they’re doing in a campaign. That has little to do with Doolittle taking fifteen percent off the top for his wife from the fundraising that’s done. That’s a different issue here. There is certainly nothing in the record that I can see from whatever work she did with - I think it must have been the Alexander Strategy Group, I can’t remember exactly - was commensurate with the amount of money being paid to her. So there’s no such thing as a blanket waiver here. Having said that, it’s not at all clear to me that every other member of Congress who does this is clean, while he’s a dirty one. It may very well be that some of the other members misuse this process or abuse it themselves.

Have you spoken with Speaker Pelosi about reforms?

Speaker Pelosi ran very vigorously against the do-nothing Congress and the culture of corruption. She has come into office, I believe, absolutely committed to changing the way things are done. But it’s not clear to me that every one of her colleagues on the Democratic side shares that commitment. In fact it’s clear to me that a number don’t. You’ve got some who don’t want to have a real deliberative process, where the Republicans now in the minority can actually have input, offer amendments, be near parity in terms of their role here. Some of them believe that the main change ought to be that they now hold the whips and the Republicans take the lashes. They want to take advantage of and leverage their leadership and use what the Republicans did, even if they criticized it, as a precedent. At the same time, one Democratic reformer said to me soon after the election, ‘Some of my colleagues want to eliminate the K Street Project and replace it with Project K Street - the Democrats’ equivalent. [The “K Street Project” was the effort by congressional Republicans to cut off all support by lobbying firms for Democrats.] If the speaker can’t overcome it, we could see basically the spigots just get turned in a different direction. It’s always going to be difficult to implement some of these changes. I think the Speaker is very much committed to doing so.

Is there a real prospect for independent ethics oversight in the works?

We have a working group set up with prominent Democrats and Republicans considering those issues now. I think there’s a very strong likelihood we’ll get some kind of independent entity. But it’s all in the details obviously, and it’s not a hundred percent that it will happen. I think most of the people on this task force, the Democrats at least, are committed to doing so. And it is a necessary, but not a sufficient, condition to make for a better place.

How could congress members, even if they’re Republicans in a majority, have gone so far down the road in undermining the basic deliberative process of congress?

I believe that Newt Gingrich, who actually wrote an endorsement of the book, a blurb, when he came into the speakership, really wanted to create a vibrant legislative branch. He’s a congressionalist. Part of the problem was he saw the only way that they could get the majority was by whipping the institution to the public as corrupt, non-functional. Then when he took over he was going to change that, make it vibrant again. But he de-legitimized it, and all those people he recruited to run with him didn’t get the second part of the message. They just saw it as, ‘This place is awful, let’s rip it apart.’ And even though they were still there, they didn’t have any strong interest in pulling it back together again.

Finally, why are you at the American Enterprise Institute? Most people who read you or see you on PBS’ Jim Lehrer News Hour or hear you on National Public Radio wouldn’t think of you as being one of this bunch.

I came here while I was teaching. I’m an academic, part-time. I came here in 1978. And then I moved here full-time in 1984. There’s a much wider range of people than one might expect at AEI. And it’s a place that really allows a lot of leeway for its fellows and scholars. So I can pretty much do what I want to do and pursue the agenda that I want to pursue, and that makes it a very attractive place to be.